Allen v. Peterson

• Decision Date: 01 May 1905
• Citation: 80 P. 849,38 Wash. 599
• Parties: ALLEN v. PETERSON et al.
• Court: Washington Supreme Court

80 P. 849

38 Wash. 599

ALLEN v. PETERSON et al.

Supreme Court of Washington

May 1, 1905

Appeal from Superior Court, San Juan County; George A. Joiner Judge.

Action to foreclose a tax certificate by E. E. Allen against C.J. L Peterson and others. From an order overruling a motion to vacate a judgment of foreclosure, certain defendants appeal. Affirmed.

Hastings & Stedman, for appellants.

Frye Healy & Slentz, for respondent.

FULLERTON J.

On September 14, 1901, the county treasurer of San Juan county issued to the respondent, E. E. Allen, a certificate of delinquency for the taxes for the year 1897 levied and assessed against four certain tracts of land, each containing 40 acres, in section 13, T. 37 N., R. 3 W., W. M. The certificate recited that the property had been assessed to C.J. L. Peterson for the year named. On the same day the respondent paid all the taxes subsequently assessed against the property which were then due and payable. On September 18, 1901, he began an action to foreclose his certificate of delinquency, naming as parties defendant C.J. L. Peterson, E. G. Sanders, and all persons unknown having or claiming an interest in the property described in the certificate of delinquency. A summons was issued bearing the same date, and placed in the hands of the sheriff for service, who made return thereon to the effect that the defendants could not, nor could either of them, be found in San Juan county. This return, however, bore date of September 17, 1901. Accompanying the summons and return, and filed therewith, was the affidavit of the plaintiff's attorney to the effect that the defendants were nonresidents of the state of Washington, and could not be found in said state, and that the affiant did not know the place of residence or post-office address of either of the defendants. The affidavit further recited that the notice and summons was placed in the hands of the sheriff of San Juan county for service on September 18, 1901, and that said sheriff had made his official return thereon on the same day to the effect that the defendants could not be found in his county. On the filing of this affidavit and return the court made an order directing that the service be made by publication. Thereupon the summons was published for six consecutive weeks in a newspaper of general circulation published in San Juan county. No appearance was made on or before the expiration of the service by either of the defendants named, nor by any one, and judgment foreclosing the certificate was duly entered on January 8, 1902. An order of sale was thereupon issued, and after due notice given the property was sold to the respondent, Allen, on February 1, 1902. Return thereof was afterwards made, and the sale was confirmed by the court on June 3, 1902. In December, 1902, the appellants E. G. Sanders and Sarah E. Sanders, his wife, appeared specially, and moved the court to vacate, set aside, and annul the judgment on the grounds: (1) That the summons or notice of the application for judgment is not in proper form, and does not comply with the statute. (2) That the return of the sheriff to the effect that the defendants could not be found was prematurely made. (3) That the affidavit made and filed in the cause as a basis for publication of summons does not comply with the statute. (4) That the defendant C.J. L. Peterson was dead at the time the action was commenced. (5) That E. G. Sanders is a married man; that the property involved is the community property of himself and wife, and that his wife was not made a party defendant in the action. (6) That for more than 20 years they have been residents of the state of Washington, and have resided more than 10 years in King county; that E. G. Sanders is a business man, and well known in King county, and could readily and easily have been found therein. And (7) that the proceedings had in the cause were insufficient to give the court jurisdiction of the property or the persons of the defendants. This motion was supported in part by the affidavit of E. G. Sanders filed therewith. On the hearing subsequently had the trial court entered an order overruling the motion, whereupon this appeal was taken.

Such of these objections as the appellants have argued we will consider in the order in which they have presented them. It is first contended that the judgment is void because the action was prematurely commenced. The law in force at the time the assessment was made on which the certificate of delinquency was issued provided that the holder of a certificate might bring an action to foreclose the same three years after the 1st day of December next following the date of such delinquency. It is said that this statute is, in effect, a prohibition against a foreclosure proceeding prior to the time named, and that, as this action was brought in September, 1901, it was premature, because the taxes for which the certificate of delinquency was issued did not become delinquent until June 1, 1898, and this action was brought before the expiration of three years from the 1st day of the December following. The appellants do not overlook the statute of 1899,...