Rule v. Somervill

• Decision Date: 01 February 1929
• Docket Number: 21359.
• Parties: RULE v. SOMERVILL et al.
• Court: Washington Supreme Court

274 P. 177

150 Wash. 605

RULE v. SOMERVILL et al.

No. 21359.

Supreme Court of Washington

February 1, 1929

Department 1.

Appeal from Superior Court, Pierce County; F. G. Remann, Judge.

Action by G. M. Rule against S. S. Somervill and another, wherein the Hammond Lumber Company was garnished. Judgment of default against garnishee, and it petitioned for vacation of the judgment. Order dismissing the petition, and petitioner appeals. Affirmed.

Fisk &amp McCarthy, of Longview, for appellant.

Browder Brown, of Tacoma, for respondent.

FULLERTON J.

The respondent, Rule, on October 6, 1926, recovered a judgment against S. S. Somervill and Elmer J. Somervill, copartners then doing business under the firm name of Pioneer Lumber Company, for the sum of $274.42. On October 15, 1926 execution on the judgment against the judgment debtors having failed, the respondent sued out a writ of garnishment against the appellant, Hammond Lumber Company averring, in his affidavit filed in support of his application for the writ, that he had reason to believe, and did believe, that the appellant was indebted to the judgment debtors and had in its possession, and under its control, personal property and effects belonging to them. The writ was in the form prescribed by the statute (Rem. Comp. Stat. § 685). It commanded the appellant to appear within a stated time and answer upon oath what, if anything, it was indebted to the judgment debtors, and what effects, if any, it had in its possession belonging to them. The writ was served upon the appellant by leaving a true copy thereof with its agent, who then resided at the city of Seattle, in the county of King. The appellant failed to make answer to the writ, whereupon the court rendered judgment against it pursuant to the provisions of the statute (Id., § 692) for the full amount of the original judgment, with the accruing interest and costs.

The judgment was entered against the appellant on November 29, 1927. On December 15, 1927, the appellant petitioned for its vacation. The body of the petition follows:

'1. That your petitioner is a corporation, organized and existing under and by virtue of the laws of the State of Delaware, and that it is authorized to do business in the State of Washington, and that your petitioner now has, and at all the times hereinafter mentioned has had, an agent for the service of process upon it; said agent being one T. P. Fisk, who has at all the times hereinafter mentioned been a resident of the City Kelso, Cowlitz County, State of Washington.

'2. That the business conducted by your petitioner during the times hereinafter mentioned consisted only in the operation of a logging camp in Cowlitz County, Washington, and in the purchase of lumber and other timber products ar various points throughout said state. That said lumber and other timber products were purchased for this petitioner by one E. W. Pack, an employee of petitioner, and that for the convenience of your petitioner and the persons from whom it purchased such lumber and other timber products your petitioner maintains a purchasing office in the city of Seattle, King County, Washington, which office is in charge of the said E. W. Pack. That the said E. W. Pack is not an officer of your petitioner, and is not its agent for any purpose other than the purchase of timber products in such amounts and at such prices as may be designated by the officers of your petitioner, and that said E. W. Pack at no time hereinafter mentioned has had any authority to bind your petitioner as its agent in any manner whatsoever, except as above set forth.

'3. That the main office and principal place of business of your petitioner in the Northwestern portion of the United States is located in the city of Portland, State of Oregon, and that at all times hereinafter mentioned all of the books and records of your petitioner have been kept in, and all of its business transacted through said office.

'4. That on or about the 17th day of October, 1927, an attempt was made to serve this petitioner with a writ of garnishment in the above-entitled action by leaving the same with the said E. W. Pack in the City of Seattle, King County, Washington. That at the time of said attempted service the said E. W. Pack told the person attempting to serve the same that he was not an agent of your petitioner for the service of process, and had no authority to accept the same, but that service should be made upon T. P. Fisk, the statutory agent of petitioner, at Kelso, Washington. That said person attempting to make such service thereupon told the said E. W. Pack that he had an extra copy of the writ which he would leave with him, and that, thereafter, the said E. W. Pack turned said writ of garnishment over to Mr. G. B. McLeod, the Vice-President and Manager of petitioner at its office in Portland, Oregon, and told him the circumstances surrounding the service of the same. That neither the said G. B. McLeod, nor any of the other officers of the petitioner, had any previous experience with garnishments in the State of Washington, and believes that any service of process upon petitioner to be valid had to be made upon their statutory agent at Kelso, Washington. That none of the officers of your petitioner knew that the procedure in garnishment matters in the State of Washington differed from that in the State of Oregon, and that under the laws of the State of Oregon it is not necessary to file or serve any answer in garnishment proceedings, except under special order of the court which is issued after the service of the original writ, a statement to the Sheriff or other officer serving the writ of garnishment that the garnishee-defendant is not indebted to the defendant in the main action being sufficient in said State of Oregon, unless controverted by the plaintiff, and that it has never been

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