Cunningham v. Spokane Hydraulic Min. Co.

• Decision Date: 31 December 1898
• Parties: CUNNINGHAM v. SPOKANE HYDRAULIC MIN. CO.
• Court: Washington Supreme Court

55 P. 756

20 Wash. 450

CUNNINGHAM v. SPOKANE HYDRAULIC MIN. CO.

Supreme Court of Washington

December 31, 1898

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by Clarence Cunningham against the Spokane Hydraulic Mining Company. There was a judgment for defendant, and plaintiff appeals. Reversed.

W. B Heyburn, E. M. Heyburn, and L. A. Doherty, for appellant.

Stephens & Bunn, for respondent.

DUNBAR J.

This was an action by the appellant against the respondent on a judgment obtained in the state of Idaho. The respondent moves to dismiss this appeal for the following reasons: (1) Because no bill of exceptions or statement of facts has been settled or certified as provided by law, or at all; (2) because the alleged notice of application to settle bill of exceptions or statement of facts is wholly insufficient; (3) because the certificate of the trial judge is wholly insufficient, and not such a certificate as is required by law, or any certificate whatever. There seems to be no merit in the first two objections, and the third is not tenable under the law of 1893. Motion denied.

The case was before this court formerly and is reported in 52 P. 235, where a statement of the case at length is given. In that case judgment was rendered in favor of the plaintiff, who is appellant here but error was alleged in admitting the record of the foreign judgment, which did not show service of process on the agent of the corporation or an appearance by the defendant against whom suit was brought. The judgment was reversed by this court, and, among other things, it was said: 'Respondent tendered in evidence on the trial in the superior court what purported to be a copy of the designation of Jesse Coulter as agent for the defendant corporation under the above statute certified as of record in the district court where the purported judgment was rendered, but not a part of the proceedings in the cause. The designation of agent so certified was received by the superior court over the objection of defendant. We do not think this certificate was a part of the record of the judgment, or of the record of the court in which the judgment was rendered. The judgment roll itself must affirmatively show jurisdiction in this class of cases.' Subsequent to the reversal of that judgment an amendment to the return to correspond with the facts was allowed by the district court in Idaho showing that the person served was the agent of the defendant. That proof was offered in the last trial of the cause in the superior court of this state, but it was held that it was not competent, because the record did not affirmatively show that the court had jurisdiction to amend the return; in other words, that it was not shown that personal service of the notice to amend the return was made. It is conceded that notice was given to the company in the state of Washington, so that they had notice in fact. Under the statutes of Idaho it is not necessary to give personal notice of a motion of this kind in a case where the defendants have not appeared, but where judgment has been taken by default. But it is objected by the respondent, and is a general rule, no doubt, that, before a statute of a foreign state can be invoked, it must be pleaded; but in this case, it seems to us, this objection is without merit, for there was no opportunity to plead the statute after the necessity existed for amending the return. No pleadings are required in a motion of this kind. There was no way by which the statute could have been pleaded. The return in this instance shows that the party served was the agent of the company, and that was the fact which this court held that it was necessary to show. ...