Robertson Mortg. Co. v. Thomas

• Court: Washington Supreme Court
• Writing for the Court: DUNBAR, J.
• Citation: Robertson Mortg. Co. v. Thomas, 111 P. 795, 60 Wash. 514 (Wash. 1910)
• Decision Date: 17 November 1910
• Parties: ROBERTSON MORTGAGE CO. v. THOMAS et al.

111 P. 795

60 Wash. 514

ROBERTSON MORTGAGE CO. v. THOMAS et al.

Supreme Court of Washington

November 17, 1910

Department 2. Appeal from Superior Court, King County; C. H. Neal Judge.

Action to foreclose a mortgage by the Robertson Mortgage Company against W. H. B. Thomas and wife, the Westmoreland Company and others. Judgment for plaintiff, and the defendants mentioned appeal. On motion to dismiss appeal. Motion granted.

Shepard & Flett and Brady & Rummens, for appellants.

John T Mulligan and E. W. Howell, for respondent.

DUNBAR J.

This is a motion to dismiss an appeal for the reason, among others that none of the appellants have served, or caused to be served, any notice of appeal upon all the parties or their attorneys of record. The action was to foreclose a mortgage by the Robertson Mortgage Company, against the Magnolia Heights Company, a corporation, L. E. Campbell, Whiton Hardware Company, a corporation, Robert Pettigrew, E. P. Jessup, and Jane Doe Jessup, his wife, Edward Connor and Mary Doe Connor, his wife, W. H. B. Thomas and Jane Doe Thomas, his wife, and the Westmoreland Company, a corporation. There was a judgment of foreclosure and a judgment barring all the defendants from asserting any claim to the land mortgaged other than was specified in the judgment. The parties had all appeared. The record shows that Edward Connor, Mary Doe Connor, E. P. Jessup, and Jane Doe Jessup, defendants, were not served with notice of appeal. Hence this motion to dismiss.

The complaint contained the ordinary allegation that the defendants claimed liens or interest in the said mortgaged property, the exact nature and extent of which to the plaintiff was unknown, but which the plaintiff alleged to be subsequent and subordinate to its interest. An affidavit is filed by attorney for appellants Thomas et al., that he had examined the record, and that it did not appear that an appearance had been made by these unserved defendants aforesaid, and that that was the reason why they were not served. But the court finds in its decree, and also in its findings of fact, that these defendants appeared and that their defaults were entered. There also appears upon the record a stipulation by all the defendants, the unserved defendants appearing by Peters & Powell, their attorneys, and the appellants appearing by their attorneys Shepard & Flett. This stipulation was to the effect that the plaintiff be permitted to amend its complaint by interlineation in the original complaint. It was the duty of the appellants to take notice of this appearance by stipulation as it was a general appearance in the case, and they cannot now urge want of knowledge of which they complain.

It is unnecessary to review all the decisions of this court on the question involved. The authorities were all collated in Sipes v. Puget Sound Electric R. Co., 50 Wash. 585 97 P. 723, and there it was held that the motion to dismiss, because one Dimmock who had been a party to the action and who had appeared and defended the action, had not joined in the appeal and had not been served, could not...