De Corvet v. Dolan

• Decision Date: 09 December 1893
• Citation: 7 Wash. 365,35 P. 72
• Parties: DECORVET ET AL. v. DOLAN ET AL.[1]
• Court: Washington Supreme Court

35 P. 72

7 Wash. 365

DECORVET ET AL. v. DOLAN ET AL.^[1]

Supreme Court of Washington

December 9, 1893

Appeal from superior court, Thurston county; M. J. Gordon, Judge.

Action by Anna Decorvet and Carl Rosin against Patrick Dolan and Mary J. Dolan to quiet title to lands. From a judgment for defendants, plaintiffs appeal. Affirmed.

John C Kleber, for appellants.

Hobart G. Hagin and O. V. Linn, for respondents.

SCOTT J.

This action was brought by appellants to quiet title to certain lands situated in Thurston county. Respondents' title rests upon a sale under a decree foreclosing a mortgage on said lands, in which action one George Cook was plaintiff, and Carl Rosin and Anna Rosin were defendants. Respondents' title depends upon the validity of said foreclosure proceedings, which are attacked upon two grounds:

The first point relates to the service of process, which was by publication. It is claimed that the affidavit upon which the same is based, under section 65, Laws 1877, p. 15, is defective, and insufficient to authorize a service of summons by publication. It is further contended that the summons was defective, and insufficient to confer jurisdiction upon the court, in that it did not sufficiently state the cause and general nature of the action, as required by section 61, p 13, of the act aforesaid. Section 65 provides as follows "If at the time the complaint is filed or any time afterward, the plaintiff or intervenor, or an attorney in the action for the plaintiff or intervenor, file in the action his affidavit stating that the person on whom service is to be made, resides out of the territory, or has departed from the territory, or cannot after due diligence be found within the territory, or conceals himself to avoid the service of summons, or the defendant or the party to be served is a foreign corporation, or the cause of action against such corporation arose within the territory, service may be made by the publication of the summons." And section 61 provides that if service is to be made by publication the summons shall contain, in addition to the other requirements of said section, the cause and general nature of the action. The affidavit upon which the service by publication is based, omitting the formal parts, is as follows: "George Cook, being duly sworn, says that he is the plaintiff in the above-described action; that the defendants reside out of this territory. He therefore asks that summons be served on the defendants by publication." It is contended that this affidavit is insufficient, in that it states a mere conclusion of law; and, further, that it should show that the defendants could not, after due diligence, be found within the territory. A number of cases have been cited from different states relating to the construction of somewhat similar sections, but none that are directly in point. A statement in the identical language of the statute is sometimes insufficient. This is especially the case where the ground alleged is inability to find the defendants after due diligence, and it is upon this ground that many of the cases cited are based. But the statement that the defendants reside out of the territory is the statement of a fact, and is all that need be said upon the subject. The statute does not make it necessary to show where the defendants resided. This is immaterial, so that they were nonresidents. Appellants contend that the different grounds set forth in the statute should be read in the conjunctive, and that the affidavit, to authorize a service by publication, should cover all of said grounds; but we do...