Dubois v. Western States Inv. Corp.

• Court: Washington Supreme Court
• Writing for the Court: BEALS, Chief Justice.
• Citation: Dubois v. Western States Inv. Corp., 180 Wash. 259, 39 P.2d 372 (Wash. 1934)
• Decision Date: 28 December 1934
• Docket Number: 25225.
• Parties: DUBOIS v. WESTERN STATES INV. CORPORATION.

39 P.2d 372

180 Wash. 259

DUBOIS v. WESTERN STATES INV. CORPORATION.

No. 25225.

Supreme Court of Washington

December 28, 1934

Department 1.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Felix Dubois against the Western States Investment Corporation. From a judgment dismissing the action, plaintiff appeals.

Reversed with instructions.

S. A. Gagliardi, of Tacoma, for appellant.

Louis J. Muscek, of Tacoma, for respondent.

BEALS Chief Justice.

For some time prior to April 29, 1930, Tony Ross and Mary, his wife, were the owners of an acre of land, upon which was situated a five-room dwelling, in the town of Milton Pierce county, Wash. On the date above mentioned, Mr. and Mrs. Ross mortgaged the land to Felix Dubois, the plaintiff in this action, to secure payment of a promissory note for $450 due in two years. In April, 1931 Tony Ross died. May 15 following his will was admitted to probate and the appointment of his widow as executrix thereof was confirmed. The estate consisted of the land above mentioned and household furniture of small value, all of which property was on the widow's application awarded to her under the statute in lieu of homestead. Mrs. Ross occupied the property until March, 1933.

The defendant in this action, Western States Investment Corporation, a corporation, being the owner of two local improvement bonds of the town of Milton issued in connection with an improvement for which the property owned by Mr. and Mrs. Ross had been assessed in the sum of $26.85, which assessment had never been paid, brought suit May 22, 1931, against Tony and Mary Ross and the plaintiff in this cause, Felix Dubois, seeking to foreclose the lien of its bonds upon the Ross property. Mr. Ross had died and his will had been admitted to probate prior to the institution of this action. Upon the filing of an affidavit to the effect that Tony Ross and Mary Ross, his wife, were nonresidents of Pierce county, and upon the filing of a return of 'not found' by the sheriff of Pierce county as against them, a summons directed to Mr. and Mrs. Ross was published. The plaintiff in the action under discussion, defendant herein also filed in that cause the affidavit of H. W. Sipe in which the affiant deposed that he served the summons and complaint upon Felix Dubois, the plaintiff in this action, by delivering copies thereof to Mr. Dubois, personally, in Pierce county, Wash. No appearance having been entered in the action, Judgment was rendered by default establishing this defendant's local improvement bonds as a lien upon the Ross property for the sum of $27.82 and foreclosing the lien.

Thereafter execution on the judgment was issued and levied and the property sold to this defendant for $27.82 and costs of suit. The sale was later confirmed, and the property not being redeemed, in November, 1932, a sheriff's deed issued conveying the property to this defendant. Negotiations between the plaintiff herein and Mary Ross during the month of January, 1933, led to an investigation of the title and revealed the foreclosure proceedings and the issuance of the sheriff's deed to this defendant.

Thereafter Mr. Dubois instituted this action seeking to set aside the sheriff's deed and praying for leave to redeem the property from the assessment lien. In his complaint plaintiff alleged many of the facts hereinabove set forth, and in addition stated that no service of summons had ever been made upon him in the action brought to foreclose the local improvement bonds, and that the affidavit showing such service was false and untrue. Plaintiff alleged his willingness to pay the assessment against the property, together with interest, etc., and also that the property was worth many times the amount of the assessment lien. The action was tried to the court, which found that Mr. Dubois had failed to successfully maintain the burden which rested upon him to show that Mr. Sipe's affidavit by way of return of service of the summons and complaint, showing service thereof upon Mr. Dubois, was untrue. The court thereupon entered judgment dismissing this action, from which plaintiff appeals.

Appellant complains of the finding of the trial court to the effect that Mr. Dubois was personally served with summons and complaint in the action brought by respondent for the foreclosure of its bond lien, also contending that the judgment entered in that action was void because Tony Ross had died prior to the institution thereof. Appellant also argues that the amount for which the property was sold was so grossly inadequate as compared to its value as to raise a presumption of fraud as matter of law and to entitle him to prevail herein, particularly in view of appellant's willingness to pay the amount due on the original assessment against the land, together with interest and costs.

It appears from the evidence that appellant at the time of the trial was seventy years of age and had resided in the city of Tacoma for over forty years, and that for more than thirty-five years he had been engaged in the business of loaning money, aften on real estate security. Strangely enough, appellant is, as his counsel says, illiterate; he having relied upon Mr. Horace Fogg to advise him concerning his business, the keeping of his accounts, etc.

Appellant testified positively that he did not know Mr. Sipe; that no summons or complaint in respondent's action against appellant had ever been served upon him; and that he knew nothing of respondent's claim until February, 1933. Mr. Fogg testified that no summons and complaint had ever been delivered to him by or for appellant. The president of respondent company testified that H.

W. Sipe was in the employ of respondent for approximately three years prior to his death, which occurred March 25, 1933, prior to the trial of this action. His duties were to collect accounts, serve process, and act as general utility man outside of respondent's office, using an automobile in connection with his duties. Mr. Sipe made a daily report of all his acts, his account of his proceedings for May 28, 1931, showing that at 10 o'clock in the forenoon he delivered the summons in question to appellant at 4535 South M street, Tacoma, and that fifty-five minutes later he served the same summons upon Elmer and Anna Hopkins at Milton.

Appellant does not contend that the affidavit made by Mr. Sipe by way of return of service is other than regular in form and substance.

It is undoubtedly the law, as conceded by appellant, that such a return of service as that made by Mr. Sipe is presumptively correct. It is equally true that this presumption is not conclusive, and that upon direct attack the return may be shown to be false. 50 C.J. 581, § 307. Mr. Sipe having died prior to the trial, we have here simply his return of service and the entry in his report, and on the other hand appellant's testimony that no such summons was ever served upon him.

Appellant argues that it should be held that Mr. Sipe must have served the summons upon some person other than appellant, believing in good faith that he was serving the summons upon the proper party.

Appellant resided at the address at which Mr. Sipe's return stated appellant was served.

The trial court had the benefit of hearing appellant's testimony, and having concluded that appellant had not sustained the burden resting upon him to overthrow the presumption of verity which attaches to the return of service, we are unable to hold that the findings of the...