Cordiner v. Finch Inv. Co.

• Decision Date: 27 August 1909
• Citation: 103 P. 829,54 Wash. 574
• Parties: CORDINER v. FINCH INV. CO.
• Court: Washington Supreme Court

103 P. 829

54 Wash. 574

CORDINER v. FINCH INV. CO.

Supreme Court of Washington, En Banc.

August 27, 1909

Appeal from Superior Court, Spokane County; William A. Huneke Judge.

Action by J. B. Cordiner against the Finch Investment Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Wakefield & Witherspoon and W. H. Smiley, for appellant.

Cordiner & Cordiner and J. C. Kleber, for respondent.

FULLERTON J.

This is an action to quiet title to certain real property, and to have certain tax proceedings, wherein the property was sold and conveyed under a purported judgment of the superior court of Spokane county, declared null and void. In his complaint the plaintiff alleged that he was the owner in fee simple of the premises so sold, that the same were vacant and unoccupied, and that he was lawfully entitled to their possession; that the defendant was a corporation; that it claimed some title, right, or interest in the land adverse to that of the plaintiff through and under an attempted tax foreclosure proceeding had in the superior court of the state of Washington for Spokane county, numbered 15,355, wherein John A. Finch was plaintiff and Alice E. Burdick was defendant, and wherein the title of Alice E. Burdick, who was then the owner in fee simple of the premises, was attempted to be cut off; that Alice E. Burdick was at the time of foreclosure proceeding a nonresident of the state of Washington, and was never within the state of Washington during the time of such foreclosure proceedings; that no service of summons or notice in the foreclosure action was ever made on Alice E. Burdick, neither did she appear therein or give notice of her appearance therein, and the court did not otherwise have jurisdiction over her person. It is then alleged that the claim of jurisdiction is based on a certain notice and affidavits each of which were set out in full. The tenth and eleventh paragraphs and prayer of the complaint were as follows:

'(10) That the court never acquired jurisdiction over the defendant, or over the land and premises described in said attempted tax foreclosure proceedings, the same being the lands and premises described in this complaint, for the reason that the said defendant was never served personally, by publication or otherwise, with summons or notice; that she never in any manner appeared in said action; that only manner in which the court attempted to acquire jurisdiction was by summons by publication in words and figures and in the manner and form as set out in paragraph 6 herein; that the said summons was not in accordance with the statute in such cases made and provided, and was and is wholly null and void; that its publication did not confer upon the court jurisdiction to render or enter any judgment therein; that the judgment attempted to be rendered and entered in said tax foreclosure proceedings was and is wholly null and void and of no force whatever; that all of said attempted tax foreclosure proceedings, including the tax deed issued thereunder by the treasurer of Spokane county on the 27th day of April, 1901, are null and void; and that the said attempted tax foreclosure proceedings, including the said tax deed attempted to be issued thereunder, confer upon said defendant no right, title, or interest in said land or any part thereof.

'(11) That, prior to the commencement of this action, plaintiff tendered to said defendant, in United States of America gold coin, all taxes, penalties, interest, and costs paid by said purchaser at said void tax sale, or his assignees or grantees, and that said tender was refused by said defendnat, and that said plaintiff is ready, able, and willing to pay all taxes, penalties, interest, and costs to which said defendant is entitled by law.

'Wherefore plaintiff prays judgment as follows: That the judgment attempted to be entered in said tax foreclosure proceedings, being case No. 15,355 in the above-entitled court, be declared and decreed to be null and void, that the tax deed issued in pursuance thereof be declared null and void, that all subsequent deeds based thereon be declared null and void, that he be permitted to redeem from said attempted tax sale, that he be adjudged to be the owner in fee simple of the lands and premises in this complaint, free from any right, title, claim, or interest on the part of the said defendant, and that he have such other and further relief as he may be entitled to under the premises, together with his costs, attorney's fees, and disbursements herein.'

After service of summons upon it the defendant appeared in the action and moved the court to require the plaintiff to make his complaint more definite and certain in the following particulars: That he state in what way he deraigned his title from Alice E. Burdick, and, if the transfer is in writing that he set forth the same and furnish the defendant with a copy thereof; that he state whether a judgment by default was entered in the cause referred to in paragraph 10 of his complaint, and set out a copy of the judgment; that he set out the proceedings in the action referred to in paragraph 10; and that he state when and where the tender was made, mentioned in paragraph 11, and state to whom the tender was made. As a part of the same motion it requested the court to require the plaintiff to furnish it with the same information in the form of a bill of particulars. The motion was denied, whereupon the defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. On hearing the demurrer was overruled. The defendant thereupon filed an answer, which did not controvert any of the allegations of the complaint, but alleged on information and belief that the plaintiff in the action was an attorney at law practicing his profession...