DocketNumber: No. 1515
Citation Numbers: 10 Wash. 414, 39 P. 117, 1894 Wash. LEXIS 236
Judges: Dunbar
Filed Date: 12/27/1894
Status: Precedential
Modified Date: 10/19/2024
The opinion of the court was delivered by
This action was begun in September, 1893, in the superior court of King county, for the foreclosure of a mortgage given by defendant Baer to the respondent on the first day of June, 1892, the mortgage being duly recorded in the proper county. The defendant, J. F. Howe, and the appellants, W. H. Surber and Frank Fagan, were made parties defendant to the action, on the ground that they claimed some interest in the mortgaged premises, the complaint alleging that said interest was subsequent and subject to the plaintiff’s mortgage. The appellants, Surber and Fagan, filed an answer denying any knowledge or information sufficient to form a belief as to most of the allegations-of the complaint, and denying generally and specifically that their lien and interest in the premises described in the complaint was subsequent or inferior to the mortgage which the action was brought to foreclose. They also set up as an affirmative defense that in February, 1891, they recovered in the superior court of Whatcom county, in the state of Washington, a judgment against certain parties defendant, among whom was one of the defendants to this action, Milton F- Baer, for the sum of $2,855.25, with interest, and costs, setting forth a copy of such judgment in the answer ; that after obtaining said judgment, viz., on the 13th day of April, 1891, a certified copy of the judgment of the superior court of Whatcom county was duly filed for record and duly recorded in the office of the auditor of King county; and alleged that the same became a lien upon the property in con
Upon these issues the cause went to trial, and the court found that the judgment entered by the superior court of Whatcom county was void, upon the ground that the said court had never obtained jurisdiction of the person of the defendant Baer. The main question to be determined, therefore, is, can the judgment of the Whatcom county court be collaterally attacked in King county; or, in other words, did the court in Whatcom county act without jurisdiction ?
It is a well settled rule of law that jurisdiction having once attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud. Cornett v. Williams, 20 Wall. 226.
Sec. 59 of the Code of 1881 provides that:
“ Civil actions in the several district courts in this territory shall be commenced by the filing of a complaint with the clerk of the court in which the action is brought, and the issuing of a summons thereon.”
And § 62 provides that the summons shall be served by the sheriff, or his deputy, and when so served it shall be returned with the certificate or affidavit of the officer, of its service, and of the service of the copy of the complaint, to the office of the clerk from which the summons issued. However, the legislature (Laws 1887-8, pp. 24-28), passed a new law providing for the commencement of civil actions, providing that civil actions in the several district courts of this Territory may be commenced by filing a complaint and issuing summons signed by the clerk of the court and under the seal of the court, giving the form of summons, providing for the manner of serving the summons, and making other provisions for filing a copy of the complaint. So that it seems plain to us that under the provisions of this law the court obtained jurisdiction of the person of the defendant by the service upon him of the summons, prescribed in the act.
If such was the case, the court having jurisdiction of the person and of the subject matter, any subsequent error committed by the court in rendering the judgment, providing, of course, the judgment rendered was such a judgment as it had power to render under the pleadings, was a mere irregularity which could not be collaterally attacked in this
It is difficult to base an argument upon the bare construction of a statute', but it seems to us that it is plain that it was the intention of the lawmakers, in the act of 1888, to establish the jurisdiction of the court over the person of the defendant when the complaint was filed and the summons prescribed by law served. This seems to have been the logic of the decision of this court in Spokane Falls v. Curry, 2 Wash. 541 (27 Pac. 477), and our conclusion would be borne out by the language used in that case, even were it conceded that the law of 1881 governed this action instead of the law of 1888.
It seems to us, also, that the judgment rendered in this action was such a judgment as was warranted by the pleadings in the case, or at least it was a judgment that the court would have been authorized to enter under the proofs which might have been introduced in that case. And the presumption being, that the court acted within its jurisdiction unless it clearly appears to the contrary, it will be presumed that even though the pleadings as they were filed would not support the judgment rendered, the court may have considered the pleadings amended to correspond with the proof offered, and have entered a judgment in pursuance of such amendment. It being once ascertained that the court had jurisdiction of the person and of the subject matter, the presumption will attach and continue, without it is plainly shown to the contrary, that the court continued to act within its jurisdiction to the end of the case.
The judgment will be reversed, and the cause remanded with instructions to the lower court to enter a decree declaring the judgment of the appellants a prior and superior lien to the mortgage of the respondent.
Hoyt, Scott and Stiles, JJ., concur.