McPhee v. Nida

• Decision Date: 26 November 1910
• Citation: 111 P. 1049,60 Wash. 619
• Parties: McPHEE v. NIDA.
• Court: Washington Supreme Court

111 P. 1049

60 Wash. 619

McPHEE v. NIDA.

Supreme Court of Washington

November 26, 1910

Department 2. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by W. H. McPhee against Augusta Nida. From an order quashing the service of summons, plaintiff appeals. Reversed and remanded for further proceedings.

William Martin, for appellant.

E. L Rinehart, for respondent.

CHADWICK J.

On the 12th day of September, 1905, plaintiff filed a complaint and summons against the defendant in King county. An effort was made to obtain service, but it was not accomplished until the 7th day of March, 1910. On the 17th day of March, defendant appeared and filed a general demurrer, setting up that the complaint did not state facts sufficient to constitute a cause of action, and that the action had not been begun within the time required by law. Leave being granted, another demurrer was filed on the 9th day of April. On April 23d, a motion was made requiring plaintiff to file his original summons and complaint. On April 30, defendant asked leave to withdraw her demurrers, and the privilege of entering a special appearance for the purpose of making a motion to quash the service of summons. This motion was accompanied by an affidavit made on behalf of the defendant by her attorney. It is stated therein that 'affiant had no means of ascertaining that plaintiff proposed to rely upon the complaint filed on the 12th of September, 1905, until he appeared in court on the day set for hearing of argument on the demurrer.' The motion to compel plaintiff to file the original summons and complaint was denied, but the court allowed the demurrers to be withdrawn, and entertained a motion to quash the service of summons, holding that 'the complaint was filed herein on the 12th day of September 1905, and no service of summons was had upon defendant until the 7th day of March, 1910, and no service of summons by publications was ever commenced after said complaint was filed.' From this order plaintiff has appealed.

Appellant insists that, respondent having made a general appearance by her two demurrers, she could not thereafter be heard to question the jurisdiction of the court; and that, respondent having filed two demurrers and also having asked affirmative relief, the court could not allow her to withdraw her general appearance and file a special appearance without abusing its discretion. On the other hand, respondent insists that the right to withdraw a general appearance is purely discretionary; that the court had not acquired jurisdiction of the defendant, and that such jurisdiction could not be conferred by consent or by the conduct of the parties. Our view of the law of the case compels us to abandon, to a certain extent at least, the theories of both parties, and to rest our decision upon our own reasoning.

Section 220, Rem. & Bal. Code, provides: '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 clerk as clerk of the court provided, that unless service has been had on the defendant prior to the filing of the complaint, the...