Olson v. Johns

• Decision Date: 17 November 1909
• Citation: 104 P. 1116,56 Wash. 12
• Parties: OLSON et ux. v. JOHNS et ux.
• Court: Washington Supreme Court

104 P. 1116

56 Wash. 12

OLSON et ux. v. JOHNS et ux.

Supreme Court of Washington

November 17, 1909

Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by A. N. Olson and wife against Paul H. Johns and wife. From a judgment for plaintiffs, defendants appeal. Affirmed.

Aust & Terhune, for appellants.

F. R Conway and A. C. MacDonald, for respondents.

PER CURIAM.

The only question involved in this appeal is the sufficiency of the service by publication.

On October 14, 1901, an action to foreclose a certificate of delinquency was brought, naming Nelson Olson, grantor of the respondent, as defendant. The property covered by the certificate was situate in West Seattle, being two unimproved lots. Nelson Olson then and for a long time prior thereto lived at Ballard, and his residence was given as such in the Seattle city directory. No attempt was made to serve him personally. No search was made by the person making the affidavit of nonresidence. No attempt at a search was made by the sheriff, who made his return of 'Not Found' immediately upon presentation to him of the notice and summons and affidavit of nonresidence. The judgment based upon such a service was void. The statute provides that in cases of this nature 'summons shall be served in the same manner as summons in a civil action.' In construing this language this court held in McMamus v. Morgan, 38 Wash. 528, 80 P. 786, that the notice was to be served personally, if personal service could be made, and that service by publication could be had only when personal service could not be had. Before it can be determined that personal service cannot be made, there must be some attempt to make it. Taking the notice and summons to the sheriff's office, with an affidavit of nonresidence, and immediately obtaining a return of 'Not Found,' upon which to predicate substituted service, is not a compliance with the statute. It is hardly to be supposed the sheriff would find the defendant in his office. The plain meaning and intendment of the statute is that the sheriff shall make some search and inquiry sufficient to justify him in believing that the defendant cannot be found in the county. The attorney made no search to locate the defendant. He could hardly be in a position to give the sheriff any information as to his being or not being a resident of the county. It is suggested that the property was located in West...