111 Wash. 672 | Wash. | 1920
On May 1, 1918, E. ft. A. Schwarzmiller commenced this action in the superior court of Snohomish county, against his wife, Ellen A. Schwarzmiller, for a decree of nullity of their marriage solemnized on January 3, 1917. He has appealed from a judgment denying any relief and dismissing the action.
Respondent and one Thomas D. Murphy intermarried in the year 1899. He was living at the date of the commencement of the present suit. It is the claim of respondent that she was divorced from her former husband by a decree of the superior court of King-county, Washington, filed therein on March 17, 1905. On the contrary, appellant contends the divorce proceedings in that case were fatally defective and that the decree is void.
The record in that case shows substantially the following facts and proceedings: On September 20, 1903, Murphy and his wife came to Seattle to live. On June 7, 1904, she filed in the superior court of King-county a summons and complaint against her 'husband for separate maintenance. No service of any kind was had, or attempted to be had, on the defendant therein
In the present case, it is the contention of appellant that the complaint for separate maintenance, filed in the case of Murphy v. Murphy, could not thereafter be converted or amended into a complaint for divorce, or at all. That it had lost its efficacy for any purpose, since there had been no personal service, or the commencement of service by publication therein within
Section 220, Rem. Code, provides that civil actions in the superior court shall be commenced by the service of a summons, or by filing a complaint with the clerk of the court, “Provided, that unless service has been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety' days from the date of filing the complaint.” It appears, therefore, that, prior to December 5, 1904, Mrs. Murphy had not commenced any action against her then husband, having only filed a summons and complaint on June 7, 1904. Put even after the expiration of ninety days, she had not lost all her rights, for, as was said in McPhee v. Nida, 60 Wash. 619, 111 Pac. 1049:
“But a party does not for these reasons lose his cause of action or his right to serve a complaint and summons at a subsequent time.”
After the expiration of the ninety days, and after she had been living in the state more than a year, she applied to the court on December 5, 1904, for leave to amend her complaint concerning the length of her residence in this state and to change its prayer to one for divorce. Those were the only respects in which the original complaint was lacking to allow proof of cause for a divorce which she then claimed she was entitled to. At the time of asking leave to amend, the defendant therein had no control whatever over the matter. He had neither been served with process nor had he appeared in the case. The matter was entirely under the control of the plaintiff therein and the court in whose clerk’s office the summons and complaint were
It is further contended that the summons published in the divorce case inadequately stated the object of the action. We are satisfied, however, that it sufficiently answers the requirements of the statute— subd. 4, § 228, Rem. Code.
Judgment affirmed.
Holcomb, C. J., Parker., Bridges, and Main, JJ., concur.