Kalb v. German Sav. & Loan Soc.

• Decision Date: 26 June 1901
• Citation: 25 Wash. 349,65 P. 559
• Court: Washington Supreme Court
• Parties: KALB v. GERMAN SAVINGS & LOAN SOC. et al.

65 P. 559

25 Wash. 349

KALB v. GERMAN SAVINGS & LOAN SOC. et al.

Supreme Court of Washington

June 26, 1901

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

Action by C. S. Kalb, as guardian of Herbert L. Dennis, a minor against the German Savings & Loan Society and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Gleeson & Stayt, for appellant.

Happy &amp Hindman, for respondents.

MOUNT J.

William and Sarah Dennis were married on July 2, 1878. In 1879 a son, Herbert, was born to them. In 1882 J. M. Glover and wife, who were the owners of the west half of lot 3 in block 17 of the Resurvey and Addition to Spokane Falls, Wash., sold the said property to said Sarah Dennis. In 1884 William Dennis died intestate, leaving his widow and son, Herbert, as only heirs. In 1884, after the death of her husband, Sarah Dennis, a widow, sold the said realty to Henry French. In 1889 said French brought an action in the superior court of Spokane county to quiet his title against the claim of said minor, Herbert Dennis. Service of summons was had upon said Herbert and his mother. Thereafter a guardian ad litem was appointed and appeared in said action, but did not in his answer set forth the interest of said minor, but submitted 'his rights and interests * * * to the tender consideration of this honorable court, and prays strict proof of the matters alleged in plaintiff's complaint.' The court upon the trial found that said Herbert had no interest in the said property, and that Sarah Dennis, at the time she sold said property, had title in fee in her own separate right, and entered a decree accordingly quieting title in said French. The respondents on this appeal are the successors in interest of said French. This action was brought in the lower court by C. S. Kalb, as general guardian of Herbert Dennis, against the respondents, claiming to be a tenant in common of said property, and praying to be so decreed. Upon a trial the court found for defendants, and that the judgment above referred to in French against Dennis was and is a valid judgment and decree, unreversed and in full force and effect, and entered judgment for defendants. Plaintiff appeals.

It will be readily observed that this is not an action to set aside the judgment in French against Dennis, but one seeking to have Herbert Dennis, the defendant in that action, declared to have an interest in said property, notwithstanding a judgment declaring he has no interest. It is well, therefore, to determine at the outset whether this action is a direct or collateral attack upon that judgment. No mention of the judgment in French against Dennis is made in the complaint herein. The answer, after denying all the allegations in the complaint, sets up the judgment as a bar to plaintiff's right of recovery, even if he ever had any interest in the property. The reply, after denying the allegations of the answer, sets out facts which plaintiff claims invalidated the said judgment. Van Fleet, in his work on Collateral Attack, at section 3, says: 'A collateral attack on a judicial proceeding is an attempt to avoid, defeat, or evade it, or to deny its force and effect, in some manner not provided by law. * * * When a judicial order, judgment, or proceeding is offered in evidence in another proceeding, an objection thereto on account of judicial errors is a collateral attack. Familiar instances are where a person relies on a judgment as a justification for a trespass, * * * or to show his right or title in * * * ejectment, trespass to try title, or suit to quiet title. That the objection to the judgment for judicial errors in such cases is a collateral attack, the cases all agree.' Black, Judgm. § 252; Morrill v. Morrill, 20 Or. 96, 25 P. 362, 11 L. R. A. 155; Finley v. Houser, 22 Or. 562, 30 P. 494; Kizer v. Caufield, 17 Wash. 417, 49 P. 1064. Under all the authorities, this action is, and must of necessity be, a collateral attack upon the judgment in French against Dennis, and must be so treated. It is so treated by appellant, because his whole argument on this appeal is directed to show that the court erred in admitting the judgment in French against Dennis in evidence in this case, upon the ground that said judgment is void. With this point determined, we proceed to examine errors alleged.

It is contended on the part of appellant that the court rendering judgment in French against Dennis had no jurisdiction of the person of defendant who was a minor. The law in reference to commencing civil actions in force in 1889--the time that action was commenced--was as follows:

'Section 1. That civil actions in the several district courts of this territory may be commenced by filing a complaint and issuing summons signed by the clerk of the court and under the seal of the court substantially as follows: 'Territory of Washington, County of _____ss.: (Here insert the names of parties plaintiff and defendant.) To the Above-Named Defendant: You are hereby requested to appear in the district court of the _____ judicial district, holding terms at _____, within twenty days after the service of this summons, exclusive of the day of service, if served in the above county, if not served in said county, but in said district, in thirty days, if served in any other judicial district in the territory in forty days, and answer the complaint, of the above named plaintiff now on file in the office of the clerk of said court, and unless you so appear and answer, the same will be taken as confessed and the prayer thereof granted. Witness my hand and the seal of said court this ___ day of _____, 18__. _____ Clerk of Said Court.''

'Sec. 4. The summons shall be served by delivering a copy thereof, as follows: * * * If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, guardian, or if there are none within this territory, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is employed, if such there be.' Laws 1887-88, pp. 24, 25.

The summons served upon Herbert Dennis, who was then a minor under the age of 14 years, with the return thereto, was as follows:

'Territory of Washington, County of Spokane--ss.: In the District Court of the Territory of Washington in and for the Fourth Judicial District Thereof, Holding Terms at Spokane Falls, Spokane County, in Said Territory. Henry French, Plaintiff, v. Herbert L. Dennis, Defendant. To the Above-Named Defendant: You are hereby requested to appear in the district court of the Fourth judicial district, holding terms at Spokane Falls, within twenty days after the service of this summons, exclusive of day of service if served in the above county; if not served in the above county, but in said district, in thirty days; if served in any other judicial district of said territory, in forty days,--and answer the complaint of the above-named plaintiff, now on file in the office of the clerk of said court; and, unless you so appear and answer, the same will be taken as confessed, and the prayer thereof granted. Witness my hand and the seal of this court this 28th day of May, 1889. Harry A. Clark, Clerk of Said Court, by A. S. Johnston, Deputy. [Seal.] A. K. McBroom, Attorney for Plaintiff.

'Territory of Washington, County of Spokane--ss.: I, E. H. Hinchliff, sheriff of Spokane county, Washington Territory, do hereby certify that I served the within summons on the within-named defendant, Herbert L. Dennis, in Spokane county, Washington Territory, on the 6th day of June, A. D. 1889, by then and there delivering to said defendant personally a copy of said summons. E. H. Hinchliff, Sheriff of Spokane County, W. T., by F. K. Pugh, Deputy.'

The summons served upon Sarah Dennis, mother of said defendant, is as follows:

'Territory of Washington, County of Spokane--ss.: In the District Court of the Territory of Washington, in and for the Fourth Judicial District Thereof, Holding Terms at Spokane Falls Spokane County, in Said Territory. Henry French, Plaintiff, v. Herbert L. Dennis, Defendant. To Sarah Dennis, Mother of Herbert L. Dennis: You are hereby requested to appear in the district court of the Fourth judicial district, holding terms at Spokane Falls, within twenty days after the service of this summons, exclusive of day of service, if served in the above county; if not served in the above county, but in said district, in thirty days; if served in any other judicial district of said territory, in forty days,--and answer the complaint of the above-named plaintiff, now on file in the office of the clerk of said court; and, unless you so appear and answer, the same will be taken as confessed, and the prayer thereof granted. Witness my hand and the seal of this court this 28th day of May, 1889. Harry A. Clark, Clerk of Said Court, by A. S. Johnston,...