City of Ballard v. Way

• Decision Date: 16 January 1904
• Citation: 34 Wash. 116,74 P. 1067
• Parties: CITY OF BALLARD v. WAY et al.
• Court: Washington Supreme Court

74 P. 1067

34 Wash. 116

CITY OF BALLARD v. WAY et al.

Supreme Court of Washington

January 16, 1904

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by the city of Ballard against George Way and another. Judgment for plaintiff, and defendants appeal. Reversed.

M. E Sheldon and John B. Van Dyke, for appellants.

H. E Peck, for respondent.

MOUNT, J.

This action was commenced by the city of Ballard, in King county to foreclose who liens against lot 12, block 15, of Gilman Park, in said city, for street improvements made in the year 1891; the lot being a corner lot, facing upon two streets. On a trial, judgment was entered in favor of the city. Defendants appeal.

The facts in the case are undisputed, and are substantially as follows: In the year 1891 the city of Ballard passed ordinances providing for the improvement of the two streets facing on the property above described, and also providing for assessments of the property to pay therefor. The streets were thereupon improved, but the assessments were declared void by the courts. Subsequently, in 1897, by virtue of an act of the Legislature of March 9, 1893, the city passed ordinances providing for reassessments of this lot to pay the costs of the improvement, together with the penalty and interest thereon. The liens created by these reassessments are the ones now sought to be foreclosed. At the time the improvements and assessments were made, the property was owned by the Woman's Home Association, a domestic corporation, of Seattle. After the street improvements were made, general taxes for state, county, and municipal purposes were levied against the lot for the years 1892 to 1896 inclusive. These taxes were permitted by the owner to become delinquent. On October 2, 1900, Alexander McDonald purchased from the treasurer of King county a certificate of delinquency for the general taxes then delinquent against the property in question, and at the same time paid taxes due for the years 1897, 1898, 1899. Mr. McDonald afterwards brought an action in the superior court of King county against the 'Woman's Home Association and all persons unknown, if any, having or claiming an interest or estate in and to the hereinafter described real property,' to foreclose his lien for taxes against the lot in question. Thereafter, on the 16th day of April, 1901, the said court entered a judgment which recites as follows: 'This cause coming on for trial this day, and it appearing to the satisfaction of the court that the notice and summons in said cause was regularly and duly served on the above-named defendants as the law in such cases requires, and more than sixty days have elapsed since said service, and defendants have failed, neglected, and refused to appear and contest or make any appearance at all in said action, it is therefore ordered.' The judgment then proceeds to find that the plaintiff therein has a tax lien against the property, and others a sale thereof to satisfy the same. The property was accordingly sold, and bid in by Mr. McDonald for the amount of his claim, and thereafter, on April 27, 1901, a deed was issued to him therefor. On May 31, 1901, Mr. McDonald sold and conveyed the property to the appellant George Way. Subsequently Mr. Way also obtained a deed from the Woman's Home Association for the property. In the record of the case of McDonald v. Woman's Home Association there is no return of personal service, but there is an attempted publication of summons, which appears to be defective for several reasons. This service, however, is not relied upon as giving the court jurisdiction in that case. Counsel for appellants relies exclusively upon the finding of service in the judgment above quoted. At the trial the validity of this judgment was attacked upon the ground that the summons had not been served, and respondent was permitted to call Mrs. Ingraham as a witness. This witness testified that she was secretary of the Woman's Home Association from the year 1890 to 1895, and that no one was ever elected to succeed her; that Mrs. Henry Furman was president of the corporation during the years 1899, 1900, and 1901; that the corporation was a local one; and that all the members and officers were at all times residents of King county. She was not asked and did not state that no personal service of the complaint in McDonald v. Woman's Home Association was had upon the association. It is not questioned here that the reassessment made by the city in 1897 is regular, and that the improvements were made; nor is it questioned that the sale and all proceedings had under the judgment in McDonald against the Woman's Home Association are regular and valid, provided the court had jurisdiction to render the judgment. It will therefore be readily observed that there are but two principal questions in the case: (1) Did the court have jurisdiction to enter the judgment in the case of McDonald against the Woman's Home Association? (2) If so, is the lien for general state, county, and municipal taxes paramount to the lien for street improvements?

1. It is apparently conceded that the record shows no legal service by publication, and appellants do not contend that the record, outside of the judgment, shows personal service by the return of any officer or person authorized to make it. But they contend that, since the court is one of general jurisdiction, the finding in the decree 'that the notice and summons in said cause are regularly and duly served on the above-named defendants as the law in such cases requires' is conclusive, and they rely wholly upon this finding. In the case of Munch v. McLaren, 9 Wash 676, 38 P. 205, this court said: 'By the filing of the complaint the court obtains jurisdiction of the subject-matter; and by the service of the summons, of the person of the defendant; and every fact not negatived by the record will be presumed in aid of the...