Deming Inv. Co. v. Ely

• Decision Date: 26 April 1899
• Citation: 21 Wash. 102,57 P. 353
• Parties: DEMING INV. CO. v. ELY et al.
• Court: Washington Supreme Court

57 P. 353

21 Wash. 102

DEMING INV. CO. v. ELY et al.

Supreme Court of Washington

April 26, 1899

Appeal from superior court, Spokane county; William E. Richardson Judge.

Action by the Deming Investment Company against Mortimer Ely and others. From an order quashing a return of service of summons on certain defendants, plaintiff appeals. Affirmed.

Danson & Huneke, for appellant.

Hanna & Hanna, for respondents.

REAVIS J.

Appeal from an order granting a motion to quash return of service of summons. October 26, 1897, appellant filed its complaint, in which it was alleged that all the defendants were nonresidents of, and absent from, this state, and that they resided in the state of New York. On November 9th following appellant applied for an order directing service of summons to be made by publication, basing the application upon an affidavit filed on that day. The order for service by publication was made, and the publication of summons followed; the first publication having been made on November 12, 1897. Within 60 days after this date, respondents appeared separately, specially, and moved to quash the return of service, on the ground that it appears on the face of the record that it was not an action wherein a publication of summons is authorized by law, or in which jurisdiction could be obtained by the publication of summons. The motion to quash the service of summons was sustained. Thereupon appellant filed another affidavit for publication of summons, and commenced the publication of summons of February 12, 1898. Within 60 days after this date respondents specially appeared separately, and moved to quash the service of the summons, stating two grounds of the motion: First, that there had been no personal service of summons upon any of the defendants, and that the first publication of summons had not been made within 90 days after the filing of the complaint; second, that it appears upon the face of the complaint and the record herein that it is not an action wherein publication of summons against defendants or any of them is authorized by law, or in which jurisdiction in rem can be obtained by publication of summons in such action against defendants. The motion to quash the service of summons was sustained, and plaintiff has appealed from the last order quashing the service of summons by publication. Respondents have moved to dismiss the appeal because the order quashing the service is not appealable.

The various appealable orders are stated in 2 Ballinger's Ann. Codes & St. § 6500, and it is there declared that an appeal lies 'from any order affecting a substantial right in a civil action or proceeding which in effect determines the action or proceeding and prevents a final judgment therein.' In Embree v. McLennan, 18 Wash. 651 52 P. 241, it was determined that an order of the court quashing a summons is appealable when, in effect, it determines the action or proceeding, and prevents a final judgment therein. The court will look at the substance of such a motion, and its effect, to ascertain whether the order is appealable, and, if it in effect determines the action, it is appealable. Appellant cannot now have the first order quashing the service of summons reviewed here, as no exception or appeal was taken within time to appeal therefrom. The statute of March 15, 1893 (Sess. Laws 1893, p. 407), provided: 'Section 1. Civil actions in the several superior courts of this state shall be commenced by the service of a summons as hereinafter provided.' But in the statute of 1895 (Laws 1895, p. 170) it was provided: 'Section 1. That section one of an act entitled 'An act to provide for the manner of commencing civil actions in the superior courts, and to bring the same to trial,' approved March 15, 1893, be and the same is hereby amended to read as follows: Civil actions in the several superior courts of this state shall be commenced by the service of a summons, as hereinafter provided, or by filing a complaint with the county clerk...