69, Smith v. Seattle Camp No. 69, Woodmen of the World

• Decision Date: 03 March 1910
• Citation: 107 P. 372,57 Wash. 556
• Parties: SMITH et ux. v. SEATTLE CAMP NO. 69, WOODMEN OF THE WORLD.
• Court: Washington Supreme Court

107 P. 372

57 Wash. 556

SMITH et ux. v. SEATTLE CAMP NO. 69, WOODMEN OF THE WORLD.

Supreme Court of Washington, En Banc.

March 3, 1910

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by Rufus H. Smith and wife against the Seattle Camp No. 69 Woodmen of the World. Judgment for defendant, and plaintiffs appeal. Affirmed.

Weter &amp Roberts, for appellants.

T. P Revelle, F. H. Holzheimer, and T. B. McMartin, for respondent.

MORRIS J.

Respondent was the lessee of a building in Seattle, used by it for camp purposes, of which appellants were the owners. The rental was $200 monthly, in advance. On January 2, 1909 respondent being then in arrears for three months' rent, the appellants gave notice to pay the rent within three days or surrender possession of the premises. This notice was served by posting a copy upon the front door of the building, and, finding no person in charge of the premises, a copy was upon the same day mailed to respondent, addressed to it at the premises in question, which notice so addressed was received by respondent on Monday, January 4th. On January 6th appellants commenced this action by service of summons and complaint, and upon the same day respondent tendered to appellants' authorized agent the $600 then due as rent. The same was refused, and subsequently was paid into court. Respondent then filed its answer, setting forth, among other matters, its tender of the rental due on January 6th and before the commencement of the action by service upon it. The court below, upon the hearing of these issues, found that the action was prematurely brought, and entered judgment for respondent, and this appeal follows.

The only question presented by this appeal is: Were the appellants justified in commencing the action on January 6th? We think not. The forcible entry and detainer statute, being a special proceeding, is not governed by any of the provisions of the general practice act, and its provisions in regard to the time and manner of bringing actions thereunder must be strictly construed. Alworth v. Gordon, 81 Minn. 445, 84 N.W. 454; 3 Wait's Law & Practice, 799. The provisions of the general practice act in regard to service by mail, which are cited and discussed in the briefs, will not, therefore, be considered, as they can be of no value in determining the question before us. Recourse must alone be had to the act under which the action is brought. Its provisions are (Laws 1905, c. 86, § 1 [Ballinger's Ann. Codes & St. § 5527; Pierce's Code, § 1170]):

'A tenant of real property for a term less than life is guilty of unlawful detainer: * * * (3) When he continues in possession in person or by subtenant, after a default in the payment of any rent, and after a notice in writing requiring in the alternative the payment of the rent or the surrender of the detained premises, served (in manner hereafter in this act provided) in behalf of the person entitled to the rent upon the person owing the same, shall have remained uncomplied with for the period of three days after service thereof. * * *

'Sec. 2. (Pierce, § 1172). * * * (3) * * * Service of any notice provided for in this act may be had upon a corporation by delivering a copy thereof to any officer, agent, or person having charge of the business of such corporation, at the premises unlawfully held, and in case no such officer, agent or person can be found upon such premises, then service may be had by affixing a copy of such notice in a conspicuous place upon said premises and by sending a copy through the mail addressed to such corporation at the place where said premises are situated. * * *'

It will be observed that the service upon a corporation, when personal service cannot be had, consists of two acts Affixing a copy of the notice in a conspicuous place upon the premises, and sending a copy through the mail. Neither one of these alone is sufficient;...