Rauch v. Zander

• Decision Date: 14 April 1925
• Docket Number: 18826.
• Citation: 134 Wash. 40,234 P. 1039
• Parties: RAUCH v. ZANDER et ux.
• Court: Washington Supreme Court

234 P. 1039

134 Wash. 40

RAUCH v. ZANDER et ux.

No. 18826.

Supreme Court of Washington

April 14, 1925

Department 1.

Appeal from Superior Court, Whatcom County; Harden, Judge.

Action by Herman Rauch against A. D. Zander and wife. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Bryan &amp Sampley, of Bellingham, for appellants.

F. M Hamilton and John A. Kellogg, both of Bellingham, for respondent.

BRIDGES J.

By this action the plaintiff sought to have annulled a written contract between himself and the defendants, concerning certain lands. Then, following the service of summons and complaint on the defendants, the plaintiff obtained an order to show cause why they should not be required to at once surrender possession of the land. On the day set for hearing the show cause order (which was 10 days before the expiration of the 20 days from the time of the service of the summons and complaint), the defendants made a 'special appearance' in that matter. After a hearing, the court denied plaintiff any relief in that respect. Thereafter, and within 20 days after the service of the summons and complaint, the defendants filed and served what is designated as a 'special appearance,' reading as follows:

'Now come the defendants through their attorneys, * * * and appear herein specially and not otherwise, and with respect show to the court that there was no other summons and complaint served on them herein except the purported summons and complaint hereto attached which was served on A. D. Zander; that the said summons is not in proper form to confer jurisdiction on the court, and said complaint is not verified nor sworn to in the manner required by law or at all, and these defendants say that they are not required to answer nor further appear and answer to said unverified complaint.'

Thereafter the plaintiff served and filed his motion for default. After hearing upon notice the court gave defendants till a time certain to serve and file their answer. The answer was not filed, but within the time specified defendants served and filed a demurrer to the complaint and a motion to strike therefrom, reserving, however, in each the previous special appearance. Thereafter, and without having made any ruling on the special appearance or the demurrer or the motion to strike, the court, on application of the plaintiff, entered a judgment of default, made findings of fact, conclusions of law, and judgment...