32 Wash. 149 | Wash. | 1903
This was an application under the revenue act of March 15, 1897, to the superior court of Asotin county, for a judgment foreclosing a lien for taxes on certain described lands situate in said county and belonging to the respondent. The plaintiff (appellant here) based his right of action on certain delinquent tax certificates issued by the county treasurer in accordance with the statute. The application was duly filed, and summons issued and placed in the hands of the sheriff for service, who stated in his return that the defendant could not be found in said county. An affidavit was then filed setting forth' the facts necessary to authorize the service of the summons by publication, and thereupon the summons was published six times in the Asotin Sentinel, a weekly newspaper published in said county, the date of the first publication being February 23, 1901, and of the last publication March 30, 1901. dSTo appearance having been made in the proceeding by or on behalf of the defendant, the court, on April 8, 1901, entered a decree foreclosing the lien, and directing a sale of the land for the payment of the taxes levied thereon, together with the statutory penalty, interest, and costs. Thereafter, on April 27, 1901, the lands described in the complaint were sold by the county treasurer, in pursuánce of the order of the court, and in the manner provided by law, to the plaintiff herein, and afterwards the said treasurer duly executed and delivered a deed to the plaintiff and appellant. Subsequently, and within one year after the rendition of the decree of foreclosure, the defendant, Robbins, filed in the superior court of Asotin county, and served on the attorney for plaintiff, a motion to open the default judgment and to be permitted to answer
The revenue act above mentioned, upon which this proceeding was based, as well as the general statute, provides that a summons to be served by publication' shall direct the owner of the property subject to the tax lien “to appear within sixty days after the date of the first publication of the summons, exclusive of the day of said first publication, and defend the action or pay the amount due.” Bal. Code, § 1751; Id., § 1877. It will be observed that the summons prescribed by law fixes a certain time for the appearance of the defendant, whereas tfie summons as pub
The respondent moves to dismiss the appeal for the reason that the order complained of is not subject to review by this court. This motion must be sustained. The statute (Bal. Code, § 4880) provides that if the summons is not served personally on the defendant in certain cases, of which this is one, the defendant mayv be allowed to defend after judgment, and within one year after the rendition of such judgment, on such terms as may be just; and the order of the court setting aside the default and vacating the judgment entered thereon, and granting the respondent leave to file an answer, was clearly authorized by that section of the statute. Indeed, neither the power of the court in the premises, nor the method pursued by the respondent to accomplish the object sought by him, is questioned by the learned counsel for appellant, their contention being that the service of the summons was irregular, but not void, and that no sufficient showing was made by respondent to warrant the action of the court. But these are all matters pertaining to the merits of the proceeding, and a discussion of them is unnecessary in view of our conclusion as to the merits of the motion to dismiss the appeal. Ho reply brief has been filed, and no argument has been made by appellant in this court upon the motion under consideration.
The appeal is dismissed, and the cause will proceed to trial in accordance with the statute governing such proceedings.
Puli,eeton, C. J., and Mount, Hadley and Dunbae, J«L, concur.