McHugh v. Conner

• Decision Date: 11 April 1912
• Citation: 68 Wash. 229,122 P. 1018
• Parties: McHUGH et ux. v. CONNER et al.
• Court: Washington Supreme Court

122 P. 1018

68 Wash. 229

McHUGH et ux. v. CONNER et al.

Supreme Court of Washington

April 11, 1912

Department 1. Appeal from Superior Court, Pierce County; Wilson R. Gay Judge.

Action by Frank McHugh and wife against Ernest A. Conner and others. Decree dismissing the complaint, and plaintiffs appeal. Affirmed.

W. H Doolittle, James J. Anderson, and Wesley Lloyd, all of Tacoma, for appellants.

A. H Garretson, of Tacoma (J. W. A. Nichols, of Tacoma, of counsel), for respondents.

CROW J.

This action was commenced by Frank McHugh and wife against Ernest A. Conner, L. R. Coombs, and others to quiet title to lots 15 and 16, in block 32, Buckley's addition to Tacoma. From a decree dismissing the complaint, and quieting title in the defendants, the plaintiffs have appealed.

The vital question on this appeal is the validity of an execution sale under which the respondents L. R. Coombs and C. Briggs claim title. E. D. Ammidown and Alma S. Ammidown, his wife, owned the lots in the year 1908. On November 17, 1908, L. R. Coombs and C. Briggs, as plaintiffs, obtained a default judgment for $792 interest and costs against E. D. Ammidown and wife in cause No. 27,516 then pending in the superior court of Pierce county. Execution was issued on this judgment, under which the lots were sold to Coombs and Briggs. The sale was confirmed, and, after the period of redemption had expired, a sheriff's deed was executed and delivered to Coombs and Briggs under which they now claim title. Appellants claim to have deraigned title from Ammidown and wife by mesne conveyances executed after the date of the sheriff's sale.

Appellants' first contention is that the judgment in cause No. 27,516 is void for want of service of process on Ammidown and wife. In that cause Coombs and Briggs were represented by A. H Garretson and C. E. George, their attorneys, and the record shows that proof of service was made by the affidavit of C. E. George, who deposed that in Pierce county on October 19, 1908, he had served the defendants Ammidown and wife with copies of the summons and complaint. Upon this affidavit, and an affidavit of nonappearance made by A. H. Garretson, an order of default was entered, in which it was found and adjudged that service had been duly made, and upon this order of default the final judgment was entered. On the trial of this action appellants introduced evidence to show that no copy of the summons had been served upon Ammidown and wife by Mr. George or by any other person; that Mr. George served copies of the complaint only; and that his affidavit was untrue, in so far as it stated that the summons had been served. Respondents admitted that by inadvertence Mr. George served copies of the complaint only, but introduced evidence to show that his failure to serve copies of the summons was immediately discovered by Mr. Garretson, who forthwith, on the same day, October 19, 1908, called upon Ammidown and wife, directed their attention to the omission, received from them the copies of the complaint, attached copies of the summons thereto, and personally delivered them to, and left them with, Ammidown and wife, who then stated they would not appear in the action; that when the default was entered proof of service was made by Mr. George, but that the only valid service had in fact been made by Mr. Garretson; that the defendants had actual notice of the pendency of the action; that they failed to appear; that the court obtained jurisdiction over them; and that the judgment was valid. This evidence was contradicted by appellants' witnesses. In their opening brief appellants say: 'This case will, as appellants understand the law, be tried de novo in this court, and perhaps it might assist the court to state at this time that the principal question of fact involved is: Did A. H....