Dlouhy v. Dlouhy, 35126

• Decision Date: 10 March 1960
• Docket Number: No. 35126,35126
• Citation: 55 Wn.2d 718,349 P.2d 1073
• Parties: Bertha M. DLOUHY, Respondent, v. Lambert F. DLOUHY, Appellant.
• Court: Washington Supreme Court

Page 718

55 Wn.2d 718

349 P.2d 1073

Bertha M. DLOUHY, Respondent, v. Lambert F. DLOUHY, Appellant.

No. 35126.

Supreme Court of Washington, Department 2.

March 10, 1960.

Irene Rush Ferris, George M. Lhamon, Donna McArthur, Seattle, for appellant.

Jonson & Jonson, Seattle, for respondent.

FOSTER, Judge.

The sole question for determination is whether appellant's personal resistance to a noticed motion to convert a temporary restraining order into an injunction pending the trial of the case was a general appearance entitling him to notice of subsequent proceedings.

The respondent wife instituted suit for divorce on November 29, 1957, and simultaneously obtained an ex parte restraining order prohibiting appellant from selling or encumbering property of the parties, pending the trial of the cause, returnable December 9, 1957, at which time he was to show cause why it should not be converted to a temporary injunction pending a trial of the case, and to show cause why he should not vacate the home. The summons and complaint, the ex parte restraining order, and ancillary papers were all personally served on the appellant. On the return date, December 9, 1957, the appellant personally appeared without counsel and responded to the court's questions with respect to the merits of the temporary restraining order and the motion to convert it to an injunction pendente lite.

On the return date, the temporary restraining order was in part converted to a temporary injunction and in part dissolved. The order entered December 16, 1957, omitting the formal parts, is as follows:

'This Matter having come on duly and regularly for hearing on the 9th day of December, 1957, before the Honorable Malcolm Douglas, one of the Judges of the above entitled Court, upon the Order to Show Cause heretofore issued out of the above entitled Court on the 29th day of November, 1957; the plaintiff being represented by her attorneys, Jonson & Jonson, and the defendant appearing in person but not being represented by Counsel, and the Court, having heard the testimony and statements of counsel, and being fully advised in the premises, does now,

'Order, Adjudge and Decree that the defendant, Lambert F. Dlouhy, be, and he is hereby restrained from molesting, annoying or threatening this plaintiff in any manner whatsoever pending the trial of this action, and said defendant be, and he is hereby further restrained from selling, assigning, mortgaging or disposing of any of the property of these parties in any manner whatsoever pending the trial of this action, and it is further,

'Ordered, Adjudged and Decreed that the motion of the plaintiff to require the defendant to vacate the home of the parties and be restrained from returning thereto, be, and the same is hereby denied.' (Italics ours.)

It was neither served on nor approved by appellant.

On December 31, 1957, respondent filed a motion and affidavit for default, and appellant's default entered the same day. On February 20, 1958, respondent noted the cause for trial on the uncontested calendar for March 3, 1958, and on that day the court awarded respondent a decree of divorce. Appellant was not given notice of any of these proceedings. He took no action nor did he file any papers in the cause other than contesting the motion on December 9, 1957.

In July, 1958, appellant petitioned for vacation of the divorce decree. Upon trial, respondent's challenge to the sufficiency of the evidence was sustained, from which judgment appellant husband appeals.

If appellant's acts at the hearing on the application for an injunction pendente lite constituted an appearance, he was entitled to notice of all subsequent proceedings which he did not receive, and the default divorce decree must be vacated.

The appearance statute, RCW 4.28.210, ¹ describes a number of ways by which a defendant may appear in an action, but it is settled law that the statutory methods of appearance are not exclusive. Warnock v. Seattle Times Co., 48 Wash.2d 450, 294 P.2d 646; In re Quick's Estate, 161 Wash. 537, 297 P. 198; State ex rel. Trickel v. Superior Court, 52 Wash. 13, 100 P. 155.

The common-law rule as to what constitutes an appearance is: Any action on the part of a defendant, except to object to the jurisdiction, which recognizes the case as in court, amounts to a general appearance. Everett Ry., Light & Power Co. v. United States, D.C., 236 F. 806; White v. Million, 175 Wash. 189, 27 P.2d 320; State ex rel. Trickel v. Superior Court, supra; Foohs v. Bilby, 95 Ark. 302, 129 S.W. 1104; 6 C.J.S. Appearances § 1(c)(2)(a), pp. 4, 5. It is clear that appellant made no objection to the jurisdiction; rather, he argued the motion on its merits. By so doing he recognized that the cause was in court and that the court had the power to determine it.

However, the appeal is not thus easily decided. Inquiry must, nevertheless, be addressed as to whether such acts by appellant constituted an appearance.

It is the policy of the law that controversies be determined on the merits rather than by default. See Beatty v. McClellan, 119 Ind.App. 385, 88 N.E.2d 56. The legislative mandate is recognized in State ex rel. Trickel v. Superior Court, supra, that a liberal interpretation be given to the appearance statutes.

Certain it is that a defendant may appear pro se, without an attorney. This may no longer be common, but it is just as effective. Everett Ry., Light & Power Co. v United States, supra; McCoy v. Bell, 1 Wash. 504, 20 P. 595; State ex rel. Bevan v. Williams, 316 Mo. 665, 291 S.W. 481; Hudson v. Manning, 250 Ky. 760, 63 S.W.2d 943; John Weis, Inc. v. Reed, 22 Tenn.App. 90, 118 S.W.2d 677. At common law, original appearance could be accomplished only by a litigant in person. Beecher's Case, 77 Eng.Reprints 559; Beecher v. Shirley, 79 Eng.Reprints 183; 26 Halsbury's Laws of England (2d ed.) 38, §§ 56, 57; 30 Halsbury's Laws of England (3d ed.) 365, §§ 680, 681. A litigant may now appear through an attorney, but that does not destroy the right of a party to appear in person. ²

Respondent contends that appellant's presence and acts in opposition to the motion and show cause were coerced by the court's order. Respondent argues that appellant's presence, being compulsory rather than voluntary, cannot be construed as a voluntary appearance. Assuming that a coerced presence by a party in court does not constitute an appearance (See Simon Piano Co. v. Fairfield, 103 Wash. 206, 174 P. 457), respondent's contention must, nevertheless, fall. Appellant was present in response to a noticed motion and order to show cause, the determination of which would affect his rights. He was not obliged to appear, but he did so in an attempt to preserve his rights. Such is dissimilar to a contempt proceeding wherein the party must appear under coercive process.

Where there is coercive process, one must personally submit to the court's power; where one is given notice of hearing on a motion affecting substantial rights, he may either submit himself to the court's jurisdiction and attempt to protect his rights, or he may not appear and allow their determination in absentia. The choice is his. He is no more coerced than he would be in choosing to appear in answer to a summons and complaint. See In re Samuelson, 134 N.J.L. 573, 49 A.2d 479; Canaday v. Superior Court, 49 Del. 456, 119 A.2d 347, 353; 6 C.J.S. Appearances § 1(c)(1), p. 4.

In the Canaday case, the court referred to an attachment as

'* * * at most * * * a coercive force designed to induce a voluntary submission to jurisdiction. * * * That such a submission may be coerced by attachment of property does not destroy its voluntary nature. * * *'

Such is analogous to the effect of the instant motion and show cause order. Appellant's presence and opposition to the motion and show cause order was voluntary.

Respondent insists that even if it be held that appellant's acts constituted a voluntary appearance as to the temporary application, such acts did not constitute a general appearance. Respondent's argument is that there is a substantial difference between a...