Miles v. Chinto Min. Co.

• Decision Date: 29 November 1944
• Docket Number: 29461.
• Citation: 153 P.2d 856,21 Wn.2d 902
• Parties: MILES v. CHINTO MINING CO. et al.
• Court: Washington Supreme Court

153 P.2d 856

21 Wn.2d 902

MILES v. CHINTO MINING CO. et al.

No. 29461.

Supreme Court of Washington

November 29, 1944

Department 2. Appeal from Superior Court, Spokane County; Ralph E Foley, Judge.

Action by C. L. Miles against the Chinto Mining Company and Banner Mining Company for the purpose of quieting title to certain real and personal property. Decree for defendant last named and plaintiff appeals.

Remanded with directions.

O. C Moore, of Spokane, for appellant.

Hamblen Gilbert & Brooke, of Spokane, for respondent.

BLAKE Justice.

This is an appeal from a decree of the superior court of Spokane county quieting title to certain real and personal property situated in Stevens county. The action got into the superior court of Spokane county upon the following stipulation:

'It is hereby stipulated between the parties to the above action that whereas no papers therein have been filed by either or any party thereto in Stevens County, for the convenience of the parties, their attorneys and witnesses, all pleadings and papers in said action shall be filed in the office of the clerk of the Superior Court for Spokane County, and all subsequent proceedings therein, to and including final judgment, shall be had and taken in Spokane County as on change of venue, without necessity for first filing same in Stevens County.

'It is further stipulated that all objections to and on account of venue are hereby expressly waived, and all subsequent papers and pleadings shall be entitled and venue shall be laid in Spokane County to the same purpose and effect as if the action had been first entitled therein.'

As indicated in the stipulation, no pleadings nor papers in the action were filed in the superior court of Stevens county. Although neither of the parties has raised it, we are confronted with the question of jurisdiction of the superior court of Spokane county to entertain the action and enter a decree quieting title. It is a universal rule that the parties to an action cannot, by stipulation, confer upon a court a jurisdiction with which it is not vested. 14 Am.Jur. 380, § 184; Cogswell v. Hogan, 1 Wash. 4, 23 P. 835; Sawtelle v. Weymouth, 14 Wash. 21, 43 P. 1101; Seattle, L. S. & E. R. Co. v. Simpson, 19 Wash. 628, 54 P. 29; Mottet v. Stafford, 94 Wash. 572, 162 P. 1001.

Remington's Revised Statutes, § 204, subd. 1, provides that actions '* * * for the determination of all questions affecting the title * * * to real property' shall be commenced in the county in which the subject of the action is situated. Subdivision 2 of the section contains a similar provision with respect to an action involving rights to possession or title to any specific article of personal property.

While the summons and complaint were titled 'In the Superior Court of the State of Washington in and for the County of Stevens,' no action was commenced in that county in contemplation of Rem.Rev.Stat. § 220. For, we have repeatedly held that the commencement of an action is not effectuated, in contemplation of that section, unless a summons is served and a complaint is filed. An action may be tentatively commenced by either service of summons or by filing a complaint. But it is not effectually commenced unless the one is followed by the other. Deming Inv. Co. v. Ely, 21 Wash. 102, 57 P. 353; Fuhrman v. Power, 43 Wash. 533, 86 P. 940; McPhee v. Nida, 60 Wash. 619, 111 P. 1049; City Sash & Door Co. v. Bunn, 90 Wash. 669, 156 P. 854, Ann.Cas.1918B, 31; Northern Pac. R. Co. v. State, 144 Wash. 505, 258 P. 482; State ex rel. Dahl v. Superior Court, 13 Wash.2d 626, 126 P.2d 199.

It has been broadly stated in a number of cases than an action is commenced by the service of summons or by the filing of a complaint. The statement has been made, however, under such circumstances, that it in nowise impinges upon the principle laid down in the cases just cited. See Snohomish Land Co. v. Blood, 40 Wash. 626, 82 P. 933; Longmore v. Puget Sound Traction, Light & Power Co., 78 Wash. 468, 139 P. 191; First Nat. Bank v. Dudley, 80 Wash. 376, 141 P. 884; Kope v. Columbia River Interstate Bridge Commission, 147 Wash. 602, 266 P. 1053; Harder v. McKinney, 187 Wash. 457, 60 P.2d 84; Craig v. Clearwater Concentrating Co., Wash., 151 P.2d 828.

It seems to us too clear for argument that, to effectuate the commencement of an action, in contemplation of Rem.Rev.Stat. § 220, the complaint must be filed in the superior court of the county in which the summons lays the venue. So, we say the action was not effectually commenced in Stevens county as required by Rem.Rev.Stat. § 204, subd. 1. Viewing the situation practically, the parties, by their stipulation, simply attempted to commence and maintain an action in the superior court of Spokane county to try a cause 'affecting the title * * * to real property' in Stevens county.

It may be conceded that, if § 204, subd. 1, were a statute relating merely to venue, the parties could so stipulate. But it has not been so regarded or construed by our decisions; on the contrary, it has been regarded as a statute affecting jurisdiction. Wood v. Mastick, 2 Wash. T. 64, 3 P. 612; McLeod v. Ellis, 2 Wash. 117, 26 P. 76; Seymour v. LaFurgey, 47 Wash. 450, 92 P. 267; State ex rel. King County v. Superior Court, 104 Wash. 268, 176 P. 352; Ryckman v. Johnson, 190 Wash. 294, 67 P.2d 927; State ex rel. Hamilton v. Superior Court, 200 Wash. 632, 94 P.2d 505.

In Wood v. Mastick, the territorial court, construing the statute which now appears as Rem.Rev.Stat., § 204, subd. 1, said, 2 Wash. T. at page 69, 3 P. at page 614: 'We are of opinion that all actions for the causes mentioned in section 48, Laws Wash. Terr. 1877, must be commenced in the county or district in which the subject of the action lies, and the court of no other county or district has jurisdiction, and in this case Snohomish county would have been the proper county in which to commence an action to foreclose, had the court below been right in holding the contract to be an equitable mortgage.'

Citing that case in McLeod v. Ellis, supra, the court said, 2 Wash. at page 122, 26 P. at page 78: 'Under the construction thus adopted, were we to hold further that the action was one for injuries to the realty, the judgment would necessarily be reversed, and the action dismissed for want of jurisdiction in the court below.' (Italics ours.)

The reason for this construction of § 204, subd. 1, and antecedent statutes of the same tenor is elaborated in Seymour v. LaFurgey, supra, 47 Wash. at page 451, 92...