Barr v. Interbay Citizens Bank of Tampa, Fla., 47231-9
Citation | 649 P.2d 827,96 Wn.2d 692 |
Decision Date | 04 January 1982 |
Docket Number | No. 47231-9,47231-9 |
Parties | Laurence D. BARR, as Personal Representative, Appellant, v. INTERBAY CITIZENS BANK OF TAMPA, FLORIDA, Respondent. |
Court | United States State Supreme Court of Washington |
It is hereby ordered that the opinion in the above cause, as the same appears at 96 Wash.2d 409, 635 P.2d 441, be changed as follows:
1. The sentence beginning with the words "We need not" on page 412, line 2, 635 P.2d 441, line 12, is deleted.
2. The sentence "We concur in this view." on page 412, line 11, 635 P.2d 441, line 25, is deleted, and the following language is inserted in lieu thereof: We concur in this view that defendant waived any question of insufficiency of process or service of process. CR 12(b)(4), (5).
Nevertheless, the bank argues this is a jurisdictional question which can be raised at any time and that since plaintiff did not comply with the statute the judgment of the trial court is void.
RCW 4.28.185(4) reads:
Personal service outside the state shall be valid only when an affidavit is made and filed to the effect that service cannot be made within the state.
In fact, affidavits were submitted on behalf of defendant which stated defendant was not licensed to do business in Washington, had no officers, agents or employees in Washington, transacts no business in Washington of any sort and that all of its employees are citizens of Florida. We have held that "substantial and not strict compliance is sufficient where a proper affidavit is filed, although late, where it appears that no injury was done the defendant as a result of the late filing." Golden Gate Hop Ranch, Inc. v. Velsicol Chem. Corp., 66 Wash.2d 469, 472, 403 P.2d 351 (1965); Whitney v. Knowlton, 33 Wash. 319, 74 P. 469 (1903). No injury is claimed here nor is there a showing the long-arm statute was being used to burden or harass defendant.
The logical conclusion from the language in the affidavits is that there were no authorized personnel in Washington for plaintiff to serve. The affidavits are thus, in the language of the statute, "to the effect that service cannot be made within the state." As they were filed before judgment, the affidavits were timely. Schel v. Tri-State Irrigation, 22 Wash.App. 788, 591 P.2d 1222 (1979). There is no requirement in the statute that the affidavits must be filed by plaintiff. There has been substantial compliance with RCW 4.28.185(4).
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