Columbia & Puget Sound Railroad v. Moss , 53 Wash. 512 ( 1909 )

Rudkin, C. J.

This was an action to recover possession of real property under the forcible entry and detainer laws. The case was before this court on a former appeal, where a statement of the issues will be found. 44 Wash. 589, 87 Pac. 951. After the record was remitted to the court below, a retrial was had before the court without a jury. The court gave judgment in favor of the plaintiff and against the defendant Moss for the possession of the entire premises described in the complaint, and against the plaintiff and in favor of the interveners for the possession of a certain undefined portion of the same premises which had theretofore been occupied by them. Two several judgments were entered in the case, and from these the aggrieved parties have appealed. We will first consider the appeal of the defendant Moss.

The first contention is that the court below acquired no jurisdiction over the person of this appellant by reason of certain defects and irregularities in the process served upon him. In the case of Larsen v. Allan Line Steamship Co., 37 Wash. 555, 80 Pac. 181, 9 L. R. A. (N. S.) 1258, the court held that a special appearance was waived unless reserved at every stage of the proceeding, and in commenting on the rule thus established, the court said:

“What may appear to be strictness in this rule commends itself to us, for the reason that a defendant may stand upon his special appearance without the necessity of a long, tedious, and expensive trial, as was had in this case. But if he chooses to pursue the latter course, he should at least make clear with all of his appearances that he has not waived his special appearance. Any error involved in the assignment above mentioned has, therefore, been waived, and the court had jurisdiction of the person of the defendant.”

On the former appeal this appellant entered a general appearance in this court without reserving or alluding to his special appearance. By virtue of that appeal this court acquired full and complete jurisdiction over the subject-matter of the action and the parties to the appeal, and might affirm, reverse, or modify the judgment appealed from, or direct the proper judgment to be entered, or direct a new trial or further proceedings to be had. Bal. Code, § 6521 (P. C. § 1069).- And when this court reversed the prior judgment and remanded the case for a new trial, the lower court became vested with full and complete jurisdiction to carry out its mandate. If the appellant desired to rely upon his special appearance, he should have saved the point, and brought the question to the attention of this court at the earliest opportunity. Having failed to do so, and having submitted to the jurisdiction of this court without reserve, the objection to the jurisdiction was waived.

It is next contended that the provisional writ of restitution under which the respondent was restored to possession of the property in controversy during the pendency of the action was void, because the act authorizing such writs in unlawful detainer proceedings instituted under the amendatory act of 1905, Laws 1905, p. 173, is unconstitutional, and because the writ of restitution was served before the service of summons. If we should accede to the correctness of this contention, it would not call for a reversal of the final judgment in the case, for a final judgment correct in itself will not be reversed simply because some provisional writ was improperly or improvidently issued. If the appellant was wrongfully ejected from the premises during the pendency of the action, he has his remedy, but that remedy is not the reversal of a judgment restoring possession to the rightful owner after a full hearing on the merits.

It is next contended that the notice to quit or surrender possession was ineffectual because served before the amendatory act of 1905 took effect, but that question was decided adversely to the appellant on the former appeal. The appellant’s claim of title by adverse possession was waived at the hearing, on the authority of McNaught-Collims Improvement Co. v. May, 58 Wash. 638, 101 Pac. 837, and need not be further considered. There is no formal assignment of errors in the appellant’s brief, but the foregoing seems to dispose of all the points discussed, and the judgment of the court as to the appellant Moss must be affirmed.

The complaint in intervention alleged that the interveners were in possession of certain premises lying to the east of the block of land described in the complaint, at the time of the commencement of the original action, and were wrongfully ousted therefrom under the provisional writ of restitution. The court found, however, that the interveners were in possession of a certain undefined portion of the premises described in the original complaint, at the time of the commencement of the action, that they were ousted from such possession, without notice, under the provisional writ of restitution, and gave judgment restoring them to their former possession and to the unexpired term therein. If the interveners were in possession of a portion of the premises at the time of the commencement of the action, and were ousted therefrom without notice or opportunity to be heard, they were properly restored to .their former possession, but the judgment went beyond this and restored them to their unexpired term therein. What that unexpired term may be we do not know, nor was the nature or extent of that term an issue in the case. As to the interveners the action was prematurely brought, and the court should have simply restored them to their former possession without attempting to adjudicate their rights, and in so far as the court did attempt to adjudicate their rights, the judgment is erroneous and must be modified.

As to the appellant Moss, the judgment is affirmed with costs. As between the plaintiff and the interveners, the judgment is modified as above indicated, and as thus modified the judgment is affirmed, without costs.

Dunbar, Crow, Mount, and Parker, JJ., concur.