29 Wash. 687 | Wash. | 1902
The opinion of the court was delivered hy
This action was brought for the purpose of quieting title to certain property, being some two bun
A cross-complaint is in the nature of an original action. Powell v. Nolan, 27 Wash. 318 (67 Pac. 712). When the
“State of Washington, County of Spokane, ss.
O'. R. McDonald, being; duly sworn, deposes and says, that he served the annexed summons and complaint in the above entitled action on the defendants ... A. M. Cannon ... at the city of Spokane in Spokane county, state of Washington, on the 10th of January, 1895. . . . That he effected such sendee on the defendant A. M. Cannon at the house of his usual abode in the city of Spokane aforesaid and on the day above stated, by then and there delivering to and leaving with*698 one Eleanor B. Cannon, the wife of said A. M. Cannon, she being a person of suitable age and discretion, then resident in said house, a copy of said summons and a, copy of said complaint. . . . That all of the copies above referred to were duly certified by Binkley & Taylor, attorneys for the plaintiff in the above entitled action, to he true and correct copies of the original summons and complaint,- respectively, in said action. And deponent further says that at the time of making such service as aforesaid, he was over the age of twenty-one years, and was not at such time and is net now a party to said action, and that he is now and was, at thei time of making such service, competent to he a witness in said action.
O. B. McDonald.
Subscribed and sworn to before me this 17th of January, 1895. J. W. Wheatley,
Rotary Public Besiding at Spokane, Wash.”
The affidavit of service of O. B. McDonald in 9,012 is substantially the same as that in 9,001, except the service was on the 12th of January, 1895. The affidavit of service of O. B. McDonald :in 9,046 is substantially the same as in 9,001 and 9,012, except the service was on the 23d of January, 1895, and except the manner of such service on A. M. Cannon is alleged as follows:
“That he effected such service on the defendant John B. Allen at the house of his usual abode in the city of Spokane aforesaid, and on the day aforesaid, by then and there delivering to- and leaving with one Katherine Allen, the wife of said John B. Allen, she being a person of suitable age and discretion then resident in said house a copy of said summons and a copy of said complaint, said copies being certified by Binkley & Taylor aforesaid to bei such copies.
“That he effected such service on the defendant A. M. Cannon at the house of his usual abode in the city of Spokane' aforesaid, and on the day aforesaid, by then and there delivering to and leaving with one Eleanor B. Cannon, the*699 wife of said A. M. Cannon, she being a person of suitable age and discretion then resident in said house.”
The words “a copy of said summons and a. copy of said complaint, said copies being certified by Binkley & Taylor, aforesaid, to be such copies,” are* omitted from the concluding part of the paragraph in which he states the manner in which service was effected on Eleanor B. Cannon for A. M. Cannon. At the beginning of the affidavit, however, it is stated, just as in 9,001 and 9,012, that “he served the annexed summons* and the complaint in the above entitled action on the defendants ... A. M. Cannon, ... on the 23d day of January, 1895, all in the city of Spokane*, state of Washington.” In addition to the return of service by O. R. McDonald, there is attached to* the summons in 9,001 the following:
“State of Washington, County of Spokane, ss.
I, —*—*-, sheriff of Spokane county, state of Washington, do* hereby certify that I have used due diligence to* make personal service of the within summons and the complaint in this action on the defendants A. M. Cannon, . . . according to* law, but have been unable to do* so for the reason.that none of said above named defendants can be found in my county; and from the* best information I can obtain I learn that said A. M. Cannon is at present* residing in the city of Yew York and state of Yew York, . Wherefore I return all of said above* named defendants not found.
Dated this 11th day of January, A. D. 1895.
E. K. Pugh,
Sheriff of Spokane County, Wash.”
This summons, with the return attached, was filed March 29, 1895. The same return, certified by the sheriff in place of his deputy, and dated the 12th of January, 1895, and filed March 25, 1895, is made in 9,012. In
“And the court having heard all the evidence and proofs produced herein, and duly considered the same, and the pleadings and all other papers in the cause, and being fully advised in the premises; and it appearing therefrom to the satisfaction of the court: — That each and all of the defendants above named have been duly summoned to appear and answer unto plaintiff’s complaint, herein,” etc.
The decree in 9,012 recites that the- cause came on for trial on the 23d of March, 1895, and further recites:
“That the defendants A. M. Cannon . . . were each and all regularly aud personally served with summons and the complaint in this action within the county of Spokane, state of Washington, more than twenty-one days prior lierato,” etc.
The decree in 9,046 recites that the cause came on for trial on the 30th of March, 1895, and further recites.:
“And the court having heard all the evidence and proofs produced herein, and duly considered the same, and the pleadings and all other papers in the cause, and being fully advised in the premises; and it appearing therefrom to the satisfaction of the court ;
That each and every of the above named defendants have been duly summoned to appear aud answer unto plaintiff’s complaint herein, but have eacb and all wholly failed to in any way appear, although the time allowed by law for them to so appear and defend this action lias, long since expired, and that, the default of said defendants in the preanises and each of them, has been duly and regularly entered according to law.”
“Sec. 5. A copy of the complaint, must be served upon the defendant with the summons unless the complaint itself be filed in the office of the clerk of the superior court of the county in which the action is commenced within five days after service of such summons, in which case the service of the copy may be omitted; but the summons in such case must notify the defendant that the complaint will be filed with the clerk of said court.;
“Sec. 6. In all cases, except when service is, made by publication, as, hereinafter provided, the summons shall be served by the sheriff of the county wherein the .service is made or by his deputy, or by any person over twenty-one years of ag’e, who is competent to be a witness in the action, other than the plaintiff.
“Sec. 7. The; summons shall be served by delivering a copy thererf, as follows: . . . (12) In all other cases, to the defendant personally, or by leaving a copy of the summons at the house of his usual abode with some person of suitable age and discretion then resident therein. Service made in the modes provided in this section shall be taken and held to be personal service.”
“Sec. 9. When the defendant cannot be found within the state; of which the return of the sheriff of the county in which the action is brought, that the defendant can not be foiind in the county, is prima, facie evidence; and upon the filing of an affidavit of the plaintiff, his agent, or attorney, with the clerk of the court, stating that he believes that the defendant is not a resident of the state-, or can not be found therein, and that, ho has deposited a, copy of the summons and complaint, in the postoffice; directed to the defendant at his place of residence; unless it is stated in the affidavit, that such residence is- not known to, the affiant, and stating the existence of one of the cases hereinafter specified, tho service may be made by publication of the summons, by the plaintiff or his attorney in either of the following cases: . . . (6) When the action is to fore*702 close, satisfy, or redeem from a mortgage, or to- enforce a lien of any kind on real estate in the county where the action is brought, or satisfy or redeem from the same. ...”
“Sec. 14. Proof of service shall be as follows: (1) If served by the sheriff or his deputy, the return of such sheriff or his deputy indorsed upon or attached to the summons; (2) if by any other person, his affidavit thereof indorsed upon or attached to the summons; ... In case of service otherwise than by publication, tba return, admission or affidavit must state the time-, place and manner of service.” Session Laws, 1893, p-. 407 (Bal. C'ode, §§ 4873-4875, 4877, 4882.
It will be seen that under § 6, supra, O. E. McDonald was as competent to serve the process in the foreclosure suits as was the sheriff of the county. It is true that, under § 9, supra, the return of the sheriff of the county that the defendant could not be found in the- county is prima facie sufficient to warrant the filing of an affidavit upon which to obtain a publication of summons. We do not think, however', that this return of the sheriff overthrew the affidavit of O'. E. McDonald to the effect that service was made at. the house of the usual abode of the defendant Cannon, and that he had a usual abode in Spokane at the time the service was made. The return of the sheriff as to the residence of the defendant Cannon is not conclusive, not even prima facie> because the statute does not require the sheriff’s return to set forth the residence of the defendant, and ordinarily he could only know it from mere hearsay. It simply requires- him to return that the defendant “cannot he found” in the county. In other words, the sheriff, hy this return, says: “I cannot find the defendant 'in my county. I cannot find the defendant’s usual abode in my county.” The law then presumes that he has no abode in the county, and is not in the county.
We cited with approval in Krutz v. Isaacs, 25 Wash. 566 (66 Pac. 141), the case of Bond v. Wilson, 8 Kan. 228 (12 Am. Rep. 466), where the court says:
“We find upon examination that the courts have generally held the sheriff’s return on mesne and final process conclusive between the parties and privies, though this is by no means a rule of universal application; but that in cases of original process there has been a general disposition to let in the truth. . . . we know of no statute that makes a sheriff a final and exclusive judge of. where a man’s residence is, or what is the age of a minor, or who are the officers of a corporation, or where their place of business is; and when the statute made it the duty of the sheriff to ascertain these facts it did not make his return of such facts conclusive.”
In case 9,046 the proof of service, under § 14, supra, is defective, inasmuch as the affiant fails to state how the service was made on Eleanor B. Cannon, as by delivering to her a copy, etc., and merely states the affiant’s conclusions. This affidavit, if directly attacked, as to the proof of service, by motion in the original proceedings, would be insufficient. The law provides how the service shall be made. §§ 5 and 7, supra. The presumption, in view of this affidavit, stating, as it does, the conclusions of the affiant, is that he served it as the law provides. The court, without requiring an amendment of this return, found that personal service had been made. There is noth
The next criticism of the appellant is that the return of service shows that the summons was left “at the house of his usual abode m the city of Spokane.” Does the addition of the words “in the city of Spokane” import that he had another residence? We- do not think it does. This return means simply that the summons was left at the house of his usual abode, and that this house was in the city of Spokana
The question decisive of this controversy is, at the time of service, did A. ÜML Cannon have a house of usual abode in the city of Spokane, and was he- served there? If he resided in Spokane, he resided with his wife and family in the Clough house in the city of Spokane, and he had no residence or usual p] ace of abode elsewhere. The service of process, if made at all, was made at that place on Eleanor B. Cannon, under § 7, Laws 1893, supra. We are
It is admitted that at the times in question A. M. Cannon was in bad health. E. O. Goodin, a witness for appellant, testified that Cannon told him, in December, 1894, that he would join him on a sea voyage for his health to South America. Goodin, who was a resident of Spokane, contemplated this trip for his own health. He went east ahead of Cannon, about December 24th, on account of his railroad pass expiring on the 31st of the month. Cannon met him in New York on January 6th or 7th; Cannon stopped at the Victoria Hotel until they sailed, somewhere between the 15th and 25th of that month. Cannon did
“The la.w assumes that every man must have á domicile, or place of last and usual abode, within the state or out of it.” Ames v. Winsor, 19 Pick. 247.
The evidence discloses that A. M. Cannon had been one of the most prominent citizens of Spokane from the very beginning. If there was any one who could have been said to have a. residence, domicile, or abiding place in that city it was. he1. He and his wife were living in perfect harmony in a house with their goods, chattels, and effects. He packed his trunk in that house and started away on January 1, 1895, to meet an old friend, Mr. Goodin, in the city of New York, to- book passage upon a steamship for a trip to South America for his health. He knew before he left that these actions would be commenced at once. He had given up the idea of being able to- pay the mortgages. The first summons was served nine days after he left Spokanei, the second ten days, and the third twenty-one days. The policy of the law is to- require the plaintiff to give the defendant the best service possible under the circumstances, and a proper construction of the whole statute relating to service forbids service by publication when the defendant is known to- have a place of residence in the state, and there can be found in such place of residence a person of suitable age and discretion to whom a copy of the summons can be personally delivered. A person may be out of the state on business or pleasure, and still have his usual place of abode in the state, and service may be made
This statute providing for service at his usual abode was not made exclusively for the benefit and protection of defendants, but was. made also for the benefit and protection of parties who have just claims, so. that residents of the state could not depart therefrom and defeat their creditors; It was not intended that judgments obtained by creditors when the defendant was out of the state, leaving a wife and family at his last residence in the state, could be affected merely by the debtor’s expression of intention to his wife or some intimate friend. If process is served at such residence as provided by subdivision 12, § 7, supra, the defendant being out of the state, a judgment should not be set aside merely upon proof of statements made by the debtor to his wife or to intimate friends that he expected to locate in business elsewhere, and not to return. On the contrary, the: creditor should be protected by the outward evidences, such as the fact that the wife and the family of the debtor continued to reside, in his usual place of residence, and that he had been absent, from home only a short time; and the creditor should not be subjected to the uncertain dangers, and hazards of the testimony of the wife or close friends, 'of the debtor as to his secret intentions. Wei think the evidence in this case shows that A. M. Cannon was domiciled in Spokane, and that the house of his usual place of abode was where the service was made. This was his fixed home. Under the facts in this, case the presumption is that it remained the house of his usual abode, because it appears that he did not determine finally to locate in Yew York until the return from his sea voyage, and until after the return of the service in all three of the foreclosure suits. An abode once acquired is presumed to- continue until it is shown to have been
“But we do< not understand the rule, as to presumptions in a direct attack upon the judgment, to go so far as to hold that facts may not be inferred from other facts appearing in the record. The service in this case shows that Susie A-. Holán was in the city of Spokane at the time of the service at the usual place of residence of James Holán, that she was the wife of James Holán, and that she was served at the residence of James Holán. Prom these facts it is right to presume that she resided with her husband in his place of residence, for the law presumes that the wife’s domicile and place of residence are the same as the husband’s, and it may be further presumed that the residence of the husband was the house of his usual abode.”
See, also, Missouri, etc., Trust Co. v. Norris, 61 Minn. 256 (63 N. W. 634); Second National Bank v. Gardner, 171 Pa. St. 267 (33 Atl. 188); DuVal v. Johnson, 39 Ark. 182.
We next inquire, is the return of O. R, McDonald as to service on Eleanor B. Cannon for A. M. Cannon false? Eleanor B. Cannon testified that no papers, summons, or complaint in the three foreclosure actions were served upon her. She further testified that between the 8th of January and the 23d of January, 1895, she was in Helena, Montana, and that she returned to Spokane about the 5th or 6th of Pebruary, 1895 ; that she tried to refresh her recollection from papers so as to locate the time she was in Helena; that she went to Helena to see her mother and sister; that she fixed the date partially from some checks
The judgment of the court below' is affirmed.
Reavis, O. J., and Anders, Hadley, Mount and Dunbar, JJ., concur.
Eullerton, J., concurs in the result.