33 Wash. 451 | Wash. | 1903
This is an action under the forcible entry and detainer statute for the restitution of certain lands claimed by the plaintiffs to be unlawfully withheld from them by the defendant. Defendant moved to quash on the ground of the invalidity of the writ; its motion was denied and defendant excepted.
The defendant, for answer to the complaint, denied portions of the coüuplaint, and alleged the existence of a lease of the premises in question, under the provisions of which lease the defendant was entitled to possession until the 23d of January, 1903. The answer further alleged, that the defendant was engaged in a general logging and lumbering business, including the clearing out and improving of rivers and streams for the driving, holding, and delivering of logs and other timber products thereon, and engaged in said business on and in the vicinity of the land described in the complaint; that all the conditions of the lease on the part of the defendant to be performed had
The appellant’s first contention is, that the court erred in overruling appellant’s motion to quash the summons; that the original summons was dated the 2d day of February, 1903, and was made returnable on Wednesday, the 18th day of February, 1903; that, under the provisions of § 5532, Bal. Code—that upon filing the complaint a summons must be issued thereon returnable at a date designated therein, which shall not be less than six nor more than twelve days from its date—the summons in this case was insufficient to give the court jurisdiction.
The summons has indorsed upon it the date mark of February 2, 1903, and it is true that the statute requires that the summons shall be returnable at a date designated therein, which shall not be more than twelve nor less than six days from the date of the summons; but this summons was served on the 9th day of February, 1903, requiring the appellant to appear on the 18th day of February, which was a period, as may be seen, not less than six nor more than twelve days from this date. We think a reasonable construction of this statute is that the date referred to is the date of the service upon the defendant, and that the requirement which the law concerns itself about is the requirement that the time for answering, which is imposed upon the defendant, shall not be more than twelve nor less than six days from the time when he receives the notice. There is no requirement of the statute in relation to a date being indorsed upon the summons. The essential thing is
In addition to this, an answer was filed several days after the motion to quash was overruled, in which no mention is made of a special appearance, and § 4886, Bal. Oode, provides that a defendant appears in an action when he answers, demurs, makes an application for an order therein, or gives a plaintiff written notice of his appearance. ' After appearance defendant is entitled to notice of all subsequent proceedings, but when a defendant has not appeared, service of notice or papers in the ordinary proceeding in an action may not be made upon him. Every such appearance made in an action shall be deemed a general appearance, unless the defendant, in making the same, states that the same is a special appearance. We think that in any event the motion was properly overruled.
The next contention is that it is a general rule of courts of justice, whether sitting as courts of law or courts of chancery, to permit the state, or any person or corporation to whom the powers of eminent domain have been delegated, if in possession of the tract while condemnation proceedings are pending, to remain in possession until the expiration of the proceedings, upon proper security to the persons whose land is the subject of the condemnation proceeding. Many cases are cited in support of this contention.
Without passing upon the question assumed by this assignment of error, viz., that this defendant is possessed of the powers of eminent domain, the cases cited by the appellant seem to us not to be in point, as they are not cases
“In our judgment,” said the court, “the demurrer should have been sustained. The very object the legislature had in view in enacting the statute under which the appellants were proceeding was to afford a summary and adequate remedy for obtaining possession of premises withheld by tenants in violation of the covenants of their lease, and this object would be entirely frustrated if tenants were permitted to interpose every defense usual or permissible in ordinary actions at law. The statute prescribes that a tenant is guilty of unlawful detainer after default in the payment of rent pursuant to the lease or agreement under which the property is held, . . . And when these facts are made to appear to the satisfaction of the court or jury upon the trial, the landlord is entitled to judgment for restitution of the premises, and also to judgment declaring the forfeiture of such lease or agreement, together with damages and the rent found due. In such proceedings counterclaims and offsets are not available;”
It is insisted by the appellant that it did not attempt by its answer to interpose an equitable defense, but simply to state a right of the defendant which will justify the court in suspending judgment until the condemnation proceeding was ended. But if the matters and things set up in the defense do not constitute an equitable defense, we are at a loss to know what kind of a defense it is. It cannot be claimed under the contract of lease that the defendant had any legal defense, or was entitled to retain possession of the lands after the term of its tenancy had expired, under any legal principle. If it was a defense at all, it was certainly of an equitable nature, although it might be very seriously doubted from a purely equitable standpoint whether the defendant should have the right to protract the term of its lease by the method of instituting a condemnation proceeding, which might or might not eventuate in its favor. And even if it did, it occurs to us that its rights should only commence to operate in its favor after they had been obtained by successful legal proceedings.
It is also contended that appellant was entitled to be served with a notice to quit, the complaint alleging notice and the answer denying it. But the answer does not deny the allegations of the complaint that the premises had been leased for a definite period, and that said period had expired; and, under the provisions of § 5527 above quoted, no notice, under such circumstances, is required.
The last contention—that the forcible entry and detainer act is violative of the provisions of the fourteenth amendment to the constitution of the United States, which pro
The complaint being a good complaint under the statute, and there being no legal defense to the allegations therein contained, the motion for judgment upon the pleadings was properly granted. Affirmed.
Hadley and Mount, JJ., concur.
Pullebton, O. J., and Andebs, J., concur in the result.