Big Bend Land Co. v. Huston
| Decision Date | 30 October 1917 |
| Docket Number | 13502. |
| Citation | 168 P. 470,98 Wash. 640 |
| Court | Washington Supreme Court |
| Parties | BIG BEND LAND CO. v. HUSTON et al. |
Appeal from Superior Court, Lincoln County.
Unlawful detainer by the Big Bend Land Company against R. E. Huston and Clara S. Huston. Judgment for plaintiff and defendants appeal. Reversed with directions to dismiss.
John G Barnes, of Seattle, for appellants.
Merritt Lantry & Merritt, of Spokane, for respondent.
Judgment having been rendered against the defendants in an action of unlawful detainer, they bring the record here by appeal.
Numerous assignments of error are discussed at length in the briefs and were ably presented on oral argument, but as the decision must turn on the point of whether the lower court acquired jurisdiction to hear and determine the case we shall confine ourselves to a consideration of this question.
The controlling facts pertinent to this feature of the case are these: On March 4, 1915, the plaintiff, the Big Bend Land Company, filed with the clerk of the superior court of Lincoln county its complaint in unlawful detainer against the defendants, to which was attached a summons in the following form:
'The State of Washington to R. E. Huston and Jane Doe Huston, husband and wife, the above-named defendants: You and each of you are hereby summoned to appear within ten days after the service of this summons upon you, exclusive of the day of service thereof, defend the above-entitled action answer the complaint herein, and serve a copy of your answer upon the undersigned attorneys at their address given below, and in the event of your failure so to do, judgment will be rendered against you as prayed for in the complaint herein, which will be filed with the clerk of the above-entitled court, and a copy of which is hereunto annexed and herewith served upon you.'
Immediately upon filing the complaint the plaintiff caused to be issued a writ of restitution, which was placed in the hands of the sheriff of Lincoln county and by him served on the defendants on the same date. On March 8, 1915, a copy of the summons and complaint was delivered to the sheriff, and on March 10, 1915, was served upon the defendants. On the latter day the writ of restitution, which had been served on the defendants March 4, was executed by the sheriff by ousting the defendants from the land and by placing the plaintiff in possession thereof pursuant to the command of the writ. On March 17, 1915, the defendants appeared specially in the proceeding and moved the court to quash the writ of restitution, its service and its execution, and also to quash the summons which was served upon the defendants upon the day on which the writ of restitution was executed. It may be well at this time to remark that the defendants have at all subsequent stages of the proceedings, both in the court below and in this court, carefully preserved their special appearance. On April 10, 1915, the court entered an order denying the motion to quash the writ of restitution, but granted the motion to quash the summons, the plaintiff having confessed the defendants' position as being well taken in the latter respect. In the meantime and on March 19th, 15 days after the filing of the complaint, the plaintiff caused to be served upon the defendants a summons which it may be conceded was in form and substance sufficient under the provisions of section 818, Rem. Code. At this time the defendants had been ejected from the premises described in the writ of restitution, and the plaintiff had been put in possession. Thereafter such proceedings were had in the action that, on September 14, 1915, a judgment was entered 'that plaintiff is entitled to and is hereby given possession of the following described land situated in Lincoln county, state of Washington, to wit.' From the foregoing it will be observed that the summons, which was attached to the complaint and which was the only summons served upon the defendants prior to the execution of the writ of restitution and the ouster of the defendants from the property, was in a form wholly unknown to the laws of this state in any character of action, and in no material respect in conformity with the requirements of our statute relating to the character of summons in actions of unlawful detainer.
Section 818, Rem. Code, provides:
'The summons must state the names of the parties to the proceeding, the court in which the same is brought, the nature of the action, in concise terms, and the relief sought, and also the return day; and must notify the defendant to appear and answer within the time designated or that the relief sought will be taken against him.'
In the summons served upon the defendants the nature of the action is not stated, the relief demanded is not mentioned, and no return day is designated.
This is a special statutory proceeding, summary in its nature and in derogation of the common law. It is an elementary rule of universal application in actions of this character, that the statute conferring jurisdiction must be strictly pursued and, if the method of procedure prescribed by it is not strictly observed, jurisdiction will fail to attach and the proceeding will be a nullity. Smith v. Seattle Camp No. 69, W. O. W., 57 Wash. 556, 107 P. 372.
The original summons is in neither strict nor substantial compliance with the statute, and is clearly void.
The question therefore arises, May a plaintiff in an unlawful detainer action file a complaint, have no summons issued thereon--for a void summons is equivalent to no summons--obtain a writ of restitution, and have it executed by putting the tenant out of possession of the leased premises, and subsequently and while himself in possession, serve a summons upon the tenant and thereby confer jurisdiction on the court to hear and determine the controversy? The solution of the problem calls for examination of our statutes defining the procedure in actions for unlawful detainer, the applicable provisions of which are found in sections 817, 818, 819, and 820, Rem. Code.
Section 817 provides that the complaint shall be in writing, and must set forth the facts on which recovery is sought, describe the premises with reasonable certainty, may state any circumstances of fraud, force, or violence which may have accompanied the forcible entry or forcible or unlawful detainer and claim damages therefor, or compensation for the occupation of the premises, or both; and in case of unlawful detainer after default in the payment of rent, the complaint must state the amount of rent...
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State ex rel. St. George v. Justice Court of Silver Bow Tp., Sliver Bow County
...construed [citing authorities]. * * * Recourse must alone be had to the act under which the action is brought." In Big Bend Land Co. v. Huston, 98 Wash. 640, 168 P. 470, case in unlawful detainer, the opinion says: "It is an elementary rule of universal application in actions of this charac......
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Sprincin King Street Partners v. Sound Conditioning Club, Inc.
...concur. 1 See RCW 59.12.170.2 Codd v. Westchester Fire Ins. Co., 14 Wash.2d 600, 605, 128 P.2d 968 (1942).3 Big Bend Land Co. v. Huston, 98 Wash. 640, 646, 168 P. 470 (1917); Little v. Catania, 48 Wash.2d 890, 893, 297 P.2d 255 (1956).4 See, e.g. Kelly v. Schorzman, 3 Wash.App. 908, 913, 47......
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Huston v. Big Bend Land Co.
...never acquired jurisdiction to determine the merits of the case. Remand was ordered, with directions to dismiss. Big Bend Land Co. v. Huston, 98 Wash. 640, 168 Pac. 470. Thereafter the superior court dismissed the action, but denied a petition for an order of restitution of the Subsequently......
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§17.12 - Termination
...use the statutory form of summons is fatal and cannot be cured by issuing a new summons in the same action. Big Bend Land Co. v. Huston, 98 Wash. 640, 168 P. 470 (1917). Once an action has been commenced in unlawful detainer, subject to the holding in Munden when possession is no longer an ......
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Table of Cases
...51 Wn.2d 59, 315 P.2d 644 (1957): 17.5(4)(e) Biehn v. Lyon, 29 Wn.2d 750, 189 P.2d 482 (1948): 22.3(4)(b)(ii) Big Bend Land Co. v. Huston, 98 Wash. 640, 168 P. 470 (1917): 17.12(2)(c)(i) Bigelow v. Mood, 56 Wn.2d 340, 353 P.2d 429 (1960): 10.5(2) Biles-Coleman Lumber Co. v. Lesamiz, 49 Wn.2......