110 Wash. 255 | Wash. | 1920
On December 31,1918, the Columbia Valley Bank, as trustee, filed a complaint in the superior court of Chelan county in which it sought to recover against the relator upon two promissory notes. No service of summons was had upon him within ninety days after the filing of the complaint, nor until June 23, 1919, when service was made by leaving a copy of the summons and complaint at the house of his usual abode with a person of suitable age and dis
The application for the writ is based on the contentions, first, that the court is without jurisdiction of the subject-matter of the action; and second, that it is without jurisdiction of the person of the relator.
To an understanding of the first of these contentions, it is necessary to notice the statutes relating to the commencement of actions. The statute provides two methods of commencing an action; first, by the filing of a complaint and the service of summons within ninety days thereafter; and second, by the service of summons on the defendant. Rem. Code, § 220. Where the summons is served without first filing the complaint, the complaint may be filed on or before the day when the case is called for trial, or the day when an application is made to the court for an order therein. Id., § 321. The statute also provides that an action is not deemed commenced so as to toll the statute of limitations until the complaint is filed. Id., § 167. Blalock v. Condon, 51 Wash. 604, 99 Pac. 733.
In McPhee v. Nida, 60 Wash. 619, 111 Pac. 1049, reviewing these statutes, we held that a suitor did not lose his cause of action by failing to serve a summons within ninety days after filing his complaint, but that he might serve his summons after that time, in which case the service would be deemed the commencement of a new cause of action dating from the time of the service; further holding that no rights could be claimed
We have not overlooked tbe relator’s contention that both tbe plaintiff and tbe trial court are proceeding in such a manner as to preclude “tbe possible argument that they consider the alleged service of June 25, 1919, as a new and separate proceeding, and therefore without tbe proviso of tbe statute. ’ ’■ But as to tbe actions or claims of tbe party plaintiff in tbe action, tbe relator should not be concerned. In spite of what it may do or claim, tbe relator has tbe right to appear and interpose any defense to tbe action be may have. As to tbe trial court, it does not appear that it has as yet been called upon to rule upon tbe question. But if it bad done so, and bad held that tbe action was commenced at tbe time the complaint was filed and was
The second contention is also without merit. It is founded on the contention that the court held there was a sufficient service of summons on the relator when there was in fact no such sufficient service. But if the contention be well taken, it furnishes no cause for the issuance by this court of a writ of prohibition.' It is but an error occurring in the progress of the cause which may be, and can only be, reviewed by an appeal from the final judgment. State ex rel. Vincent v. Benson, 21 Wash. 571, 58 Pac. 1066. The application is denied.
Holcomb, C. J., Mount, Tolman, and Bridges, JJ., concur.