Schell v. Tri-State Irrigation, TRI-STATE

• Citation: 22 Wn.App. 788,591 P.2d 1222
• Decision Date: 08 March 1979
• Docket Number: No. 2605-III,TRI-STATE,2605-III
• Parties: Stan SCHELL and Joan Schell, husband and wife, Respondents, v.IRRIGATION and Robert L. Tiedgen and Jane Doe Tiedgen, husband and wife, Individually, and as a community, Appellants.
• Court: Washington Court of Appeals

Page 788

22 Wn.App. 788

591 P.2d 1222

Stan SCHELL and Joan Schell, husband and wife, Respondents, v. TRI-STATE IRRIGATION and Robert L. Tiedgen and Jane Doe

Tiedgen, husband and wife, Individually, and as a

community, Appellants.

No. 2605-III.

Court of Appeals of Washington, Division III, Panel Three.

March 8, 1979.

Michael R. Tabler, Waterville, for appellants.

Robert A. Kiesz, Wenatchee, for respondents.

ROE, Judge.

Plaintiffs Schell answered an ad for irrigation equipment placed in the "Washington Farmer" by defendant Tri-State Irrigation Co., a Colorado corporation. After negotiations with Tri-State's president, defendant Robert L. Tiedgen, the Schells agreed to purchase over $80,000 worth of equipment for their wheat farm in Douglas County. The equipment was allegedly defective and the Schells filed suit in Washington for breach of warranty, seeking damages for repair costs and the loss of their wheat crop. Pursuant to RCW 4.28.185(2), the summons and complaint were sent to the sheriff of Logan County, Colorado, who there personally served defendants Tri-State and Tiedgen, Colorado residents. None of the defendants then filed an answer or otherwise appeared in the action. After entering findings of fact and conclusions of law, the trial court signed a default judgment against all defendants in the amount of $174,074.20. Two months later, defendants retained Washington counsel and moved to set aside the judgment, alleging that the court lacked personal jurisdiction over them due to the Shells' failure to file timely the affidavit required by RCW 4.28.185(4):

Personal service outside the state shall be valid only when an affidavit is made and filed to the effect that service cannot be made within the state.

The Schells then filed this affidavit the next day. Finding this to be "substantial compliance" with the statute, the trial court refused to set aside the default judgment. Defendants filed a subsequent motion for reconsideration and alternative motion for order setting aside default judgment on the grounds of excusable neglect. Following the denial of these motions, defendants appealed.

RCW 4.28.185 enlarged personal jurisdiction over foreign corporations and nonresident defendants. This method of obtaining jurisdiction is in derogation of the common law and must be strictly construed since jurisdiction is acquired only as provided by the statute. This "long-arm" statute is also limited by the due process clause. Smith v. York Food Mach. Co., 81 Wash.2d 719, 504 P.2d 782 (1972). Under RCW 4.28.185(2), ¹ personal service outside Washington has the same legal effect as personal service within this state. Subsection (4) of the statute, quoted above, conditions the validity of out-of-state service on the filing of the affidavit.

The Schells argue that substantial compliance with the statute is sufficient, citing Golden Gate Hop Ranch, Inc. v. Velsicol Chem. Corp., 66 Wash.2d 469, 403 P.2d 351 (1965). That case involved the same statute: the affidavit was filed 11 days after the summons and complaint were served, obviously before judgment. Rejecting the defendant's argument that such service was improper under the statute, the court held:

The statute does not provide that the affidavit must be filed Before the summons and complaint are served, but simply that the service will be valid only when such an affidavit is filed. Consequently, the service became valid when the affidavit was filed. Furthermore, we have the rule in this state that substantial and not strict compliance is sufficient where a proper affidavit is filed, although late, where it appears that No injury was done the defendant as the result of the late filing.

(Italics ours.) Golden Gate Hop Ranch, Inc. v. Velsicol Chem. Corp., supra, at 472, 403 P.2d at 354 (citing Whitney v. Knowlton, 33 Wash. 319, 74 P. 469 (1903), which involved a 3-day lapse between the verification and filing of an affidavit of nonresidency).

The Schells contend that the required showing of injury to the defendant "must, common sense tells us, be something other than the taking of the judgment." We disagree. A judgment entered without valid personal jurisdiction over the defendant violates due process.

Hatch v. Princess Louise Corp., 13 Wash.App. 378, 534 P.2d 1036 (1975), is directly on point and we adopt the ratio decidendi thereof. There, defendant Princess Louise Corporation was personally served in...