Ralph v. Lomer

• Decision Date: 24 December 1891
• Parties: RALPH v. LOMER.
• Court: Washington Supreme Court

28 P. 760

3 Wash. 401

RALPH v. LOMER.

Supreme Court of Washington

December 24, 1891

Appeal from superior court, Pierce county; MASON IRWIN, Judge.

This was an action by Jacob Ralph against Gregory A. Lomer to recover possession of premises leased to the defendant. There was judgment for plaintiff, and defendant appeals. Affirmed.

Taylor & Hammond and Carroll, Coiner & Davis, for appellant.

Clifford, Evans & Kreider and Doolittle Pritchard, Stevens & Grosscup, for respondent.

ANDERS C.J.

On August 13, 1888, the respondent and his wife, who died before the commencement of this action, demised to appellant the premises in controversy in this case for the term of five years, at a monthly rent of $425, in gold coin of the United States, payable (except the first payment which was to be made on September 1st) in advance, on the 1st day of each and every month, at the National Bank of Commerce, in the city of Tacoma. Among others, the lease contains the following stipulation: "And it is agreed that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to re-enter the said premises, and to remove all persons therefrom, the party of the second part hereby waiving any notice to quit, or of intention to re-enter; and the parties of the first part covenant that the said party of the second part, on paying the monthly rent, and performing the covenants aforesaid, shall and may peaceably and quietly have, hold, and enjoy the said demised premises for the term aforesaid." Appellant took possession of the premises described in the lease at or about the date thereof, and paid the rent, though rarely, if ever, on the day it became due, up to February 1, 1890. On that day appellant being still in possession, and failing to pay the rent then due, respondent served upon him the following notice in writing: "To Gregory A. Lomer and Elizabeth Lomer: You, and each of you, are hereby notified that the rent for lots 27, 28, 29, and 30, in block 708, together with the buildings situated thereon, and all being situated in the city of Tacoma, county of Pierce, state of Washington, was due on the 1st day of February, A. D. 1890, and is still unpaid. And you, and each of you, are hereby further notified that, unless the said rent is paid within ten days from the date of the service of this notice upon you, your tenancy will be forfeited thereto, as provided by the statutes of the said state of Washington. JACOB RALPH. By JOHN EVANS, Atty." Payment not having been made within the following 10 days, respondent, on February 13, 1890, commenced this action to recover the possession of the demised premises, which resulted in a judgment in his favor for restitution, and for rent that had accrued up to that date. The defenses to the action interposed by the defendant were tender of rent due before the commencement of the action, and a statement of certain facts claimed to constitute an eviction. Before the trial the defendant, appellant here, appearing specially, moved the court to dismiss the action on the ground that the court had no jurisdiction of the person of the defendant, for the reason that no legal summons had been served upon him. The motion was denied by the court, and exception taken; and this ruling of the court is the first error assigned.

The objections to the summons are that it does not require the defendant to appear in any court known or existing in the state, and that it does not conform, in some other respects, to the provisions of the law applicable thereto. The court is therein designated as "the superior court of the state of Washington for the county of Pierce, holding terms at Tacoma;" and it is claimed that there is no such court, but that the proper appellation should have been, "the superior court of Pierce county." If it were conceded that the contention of the learned counsel for appellant is correct, we think the requirement of the statute was substantially complied with in that regard. We fail to see how the defendant could possibly have been prejudiced or in any manner misled by the designation of the court. There was but one superior court of or for the county of Pierce, and the defendant must have known that fact; and, while we would not hesitate to declare a summons void which should radically fail to conform to the requirements of law, we do not feel inclined to hold that slight variances, which cannot be prejudicial in effect, are fatal. Moreover, it must be remembered that the form of the summons prescribed by the legislature was adopted during the existence of the territory, and was adapted to the judicial system then in force; and upon the admission of the territory into the Union as a state, with an entirely new and different system of courts, some of the former requisites of the summons became entirely meaningless and inapplicable to the changed condition of our judicial system. The territory was then divided into judicial districts, and the summons required that a defendant served in the county where the complaint was filed should answer within 20 days, exclusive of the day of service; but if not served in the county, but in the district, in 30 days; and if served in any other district, in 40 days. ^[1] There are now no judicial districts in this state, and until the last session of the legislature the form and requisites of the summons remained unchanged. This summons required the defendant to appear "within twenty days after the service of the summons, exclusive of the day of service, if served in the above county; if not served in said county, in forty days," etc. And it is insisted by counsel for appellant that the defendant by this summons was required to appear and answer, if not served in Pierce county, in 40 days, whether served or not; and the language used, taken literally, would justify that construction. But, as the defendant was in fact served in Pierce county, he certainly was not at a loss to determine when to file his answer. We are aware that there are cases holding that a summons "must contain all that is required by statute, whether deemed important or not." It was so ruled in Lyman v. Milton, 44 Cal. 634, and in Ward v. Ward, 59 Cal. 139. But in the later case of Shinn v. Cummins, 65 Cal. 98, 3 P. 133, a more liberal construction was adopted; and it was there said that, "while it is advisable in all cases to literally comply with the provisions of the Code, nothing short of a substantial departure therefrom can properly be held to be fatal to a proceeding under it." The defendant in this case was informed by the summons of everything essential to be known, and could not have been injured or prejudiced by the defects pointed out, and we are of the opinion that he has no substantial reason to complain of the action of the court in denying his motion to dismiss.

The next objection of appellant is that the court erred in sustaining the demurrer to defendant's "further and second" defense in his amended answer. This defense consists of an allegation that the defendant on the 12th day of February, 1890, and before the commencement of this action, offered and tendered the sum of $425 to the National Bank of Commerce of Tacoma, at its banking-house in the city of Tacoma, during its banking hours, as and for the rent of the said premises for the month of February, 1890, in accord and with the provisions of the said lease, and that the said bank then and there refused to accept the same, and that he has ever since been and now is ready and willing to pay the said rent in accordance with the terms of said lease. The objections to the plea were- First, that the offer to pay was too late to bar a forfeiture; second, that the amount was not sufficient; and, third, that the allegation did not set forth a good plea of tender. It has been observed that by the terms of the lease the sum of $425 became due and payable at the bank named on the 1st day of February, on which day the money was demanded of defendant, but was not paid or offered to be paid by him. The notice served on the defendant on that day informed him that the rent was then due, and unless paid within 10 days from the date of service the tenancy would be forfeited, as provided by the statutes of the state. No attempt was made to pay the rent during the 10 days, as is shown by the answer itself. Section 2056 of the Code of Washington provides that "when a tenant fails to pay rent when the same is due and the landlord notifies him to pay said rent or quit the premises within ten days, unless the rent is paid within said ten days the tenancy shall be forfeited at the end of said ten days." It therefore would seem clear that, if there is no other statutory provision whereby the defendant may be relieved from the effect of his neglect to pay the rent, his tenancy became forfeited absolutely, at the option of the plaintiff, at the expiration of the 10-days notice, by operation of law, and not even a properly made tender after that time would work a revival of his right to retain possession of the premises. Roussel v. Kelly, 41 Cal. 360; Treat v. Liddell, 10 Cal. 302; Chadwick v. Parker, 44 Ill. 326; Cunningham v. Holton, 55 Me. 33; Hendrickson v. Beeson, 21 Neb. 61, 31 N.W. 266; Leary v. Pattison, 66 Ill. 203; Carondelet v. Wolfert, 39 Mo. 305. To meet this objection, appellant insists that the notice and demand was insufficient, because not in the language of the statute, and for the further reason that it did not specify the exact amount due. The notice was not in the exact language of the statute. It did not require the defendant "to quit the premises in ten days," but it did notify him that the rent was due, and, if not paid...