Donaldson v. Winningham , 62 Wash. 212 ( 1911 )

Fullerton, J.

This cause was before this court in 48 Wash. 374, 93 Pac. 534, 125 Am. St. 937, and again in 54 Wash. 19, 102 Pac. 879. On the first appeal we held that the only question open to the appellant was whether she had been properly served with notice of the application for the appointment of a guardian of her person and estate while she was confined in the hospital for the insane, and a new trial was ordered with direction to admit evidence upon that question. After the cause was remanded, evidence was taken upon the question suggested by depositions, and on the second appeal it was held that the proceedings had in taking the depositions were so far irregular as to require their exclusion, and the cause was remanded for further proceedings. On the remand of the case, depositions were again taken on the disputed question. The procedure had in taking these last depositions is questioned on this appeal.

It appears that a commission was sued out to take the deposition of a certain Dr. Van Zandt; that at the time and place appointed for taking the deposition, the parties appeared and stipulated that the questions and answers should be taken in shorthand by a stenographer, and afterwards transcribed in longhand by him, when they should be signed by the doctor. The deposition was so taken and so transcribed, but when it was presented to the doctor he discovered so many errors in it that he refused to sign it. The respondent thereupon sued out another commission under which the deposition was regularly taken. This last commission was issued over the objection of the appellant, and she now insists that the court erred in issuing it. But we are clear no error was committed in this behalf. There is no prohibition in the statute against issuing a second commission to take the deposition of a party when the first proves abortive, and plainly the interest of justice requires such a course.

On the question of the service of the notice, a number of objections are made. It is insisted first that the proofs were not sufficient, but on this question we think the proofs ample to show a service in strict compliance with the statute. According to the attendants at the asylum,, the notice was served both upon appellant personally and upon the person having her in charge.

Next it is said that the time of service was too short. The statute provides (Laws 1903, p. 242), that when an application is made for the appointment of a guardian for an insane person, the court shall cause notice thereof to be given such insane person of the time and place of hearing the application, “not less than ten days before the time so appointed.” In this instance the time appointed for hearing the application was March 2, 1905, and the notice was served on the insane person and upon the person having her in charge, on February 20, 1905. By excluding the first day and including the last in the computation, according to the rule of the statute, the service was made “at least ten days before” the time of the hearing.

The third objection is that the service was void because made by a private party and not an officer of the law empowered by statute to make service, but the procedure taken is authorized by statute. It is provided by the statute that the laws of the state of Washington, “relating to the manner of service of summons” shall apply to the service of the notice therein provided for. A summons may be served by a private party, and we think the legislature meant to allow notices to . be likewise served, even though the language used, technically construed, would seem to require a more narrow interpretation.

The other objections to the guardianship proceedings seem to us to suggest matters of error rather than jurisdictional questions. As such they cannot be considered in this form of action.

The judgment is affirmed.

Parker, Gose, and Mount, JJ., concur.