58 Wash. 656 | Wash. | 1910
This is an action to remove a cloud, consisting of a tax deed, upon plaintiffs’ title to a lot in Seattle. Upon a trial before the court, findings were made and decree rendered in favor of the plaintiffs. The defendant has appealed. The facts as found by the learned trial court are, in substance, as follows: Respondent Edwin B. Pillsbury is, and has been since the year 1891, the owner of the lot involved. In November, 1899, the treasurer of King county issued a certificate for delinquent taxes upon the lot to the appellant, who then paid all taxes due thereon. In January, 1901, appellant began an action in the superior court for King county against respondents to foreclose his certificate of delinquency. The only summons or notice ever issued or attempted to be served in that action was addressed to the respondents, who were defendants therein, requiring them to appear and defend within sixty days after the service of such notice upon them. Summons or notice was never served upon either of the respondents other than by publishing it in a newspaper in King county. On April 26, 1901, there was entered a judgment by default in that action, foreclosing appellant’s certificate of delinquency and directing a sale of the lot. Thereafter, in pursuance of that judgment, the treasurer of King county sold the lot to appellant and executed a tax deed therefor in usual form. This deed constitutes the cloud upon respondents’ title which is sought to be removed by this action.
Prior to and for a long time after the commencement of
In addition to the foregoing facts shown by the findings and decree, the following is shown by the record. The respondents allege in their complaint facts showing their efforts to find appellant and to make tender to him, in substance as above stated, and also allege that they are “ready and willing to pay the amount justly due said defendant for taxes paid by him on said premises.” Appellant was served by publication in this action, and thereafter answered and set up his ownership of the lot. It is plain from the record that appellant would have at all times refused to accept or consider any tender from respondents. Respondent Edwin B. Pillsbury claims to have acquired title to the lot in 1891, prior to his marriage, which occurred in September, 1892.
Learned counsel for appellant contend that the proof fails to show that respondent Edwin B. Pillsbury is the owner of the lot, except for the tax deed, and that respondents are therefore not entitled to maintain this action. Respondents are nonresidents of the state and were not present at the trial. Their counsel offered in evidence the record of a deed in the auditor’s office of King county purporting to convey it, on October SO, 1891, to “Edwin B. Pillsbury, of Detroit, Michigan,” from the owners of the addition in whom it is conceded good title was then vested. Mr. Pillsbury testified in his deposition that he purchased the lot about 1890 from James A. Moore, one of the owners of the addition, making
It is contended that there was no proof of any tender by respondents to appellant prior to the bringing of the action. In view of the fact that the appellant has at all times claimed title to the land, and has at all times plainly indicated that a tender would be refused by him, the respondents were relieved from the necessity of proving a tender. Gould v, Stanton, 54 Wash. 363, 103 Pac. 459, and cases cited.
It is further contended that the proof does not support the finding that there was no summons or notice in the tax foreclosure case other than the one we have mentioned requiring the defendants therein, these respondents, to appear and defend within sixty days after service of such notice. It is settled, by our prior holdings, that a summons to be served by publication in this form is void and gives no jurisdiction to render judgment. Bern. & Bah Code, § 9254, subd. 2;
It is not seriously claimed that this summons is valid. It was proven that there was no personal service of any summons upon Pillsbury or his wife in the tax foreclosure case; that they did not enter any appearance in that case, and did not know of its existence until long after the rendering of judgment therein; and that the records and files of that case fail to show the issuing or- serving of any summons therein other than the void one above mentioned. There was no affirmative showing by appellant that there was ever any other summons issued or served in the case. Under our holding in Gould v. White, supra, these facts made out a prima facie case in behalf of respondents, and there being no affirmative proof to overcome it, the trial court was, therefore, fully warranted in finding that no other summons was ever issued or served in the case.
It is also contended that the trial court committed error in refusing to strike from the cost bill certain items consisting of notary’s fees incurred by respondents in taking depositions, upon the ground that such fees were not indorsed upon the deposition by the notary, and also that they were not properly taxable. Rem. & Bal. Code, § 482, expressly provides that:
“The prevailing party, in addition to the allowance of costs, . . . shall also be allowed for all necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, the necessary expense of talcing depositions, by commission or otherwise, ...”
and the same section further provides for the proving of the amount of such disbursements by affidavit, in which manner they appear to have been- proven, in this case, which affidavit is not denied. Our attention has not been called to any statutory provision requiring the endorsement of the fees on the deposition by the officer taking it. It is also argued that one of the depositions was taken upon stipu
Other alleged errors discussed by appellant’s counsel would not affect the result. We are of the opinion that the judgment should be affirmed. It is so ordered.