Soderberg v. McRae

• Decision Date: 02 February 1912
• Citation: 67 Wash. 104,120 P. 878
• Parties: SODERBERG et al. v. McRAE et al.
• Court: Washington Supreme Court

120 P. 878

67 Wash. 104

SODERBERG et al. v. McRAE et al.

Supreme Court of Washington

February 2, 1912

Department 1. Appeal from Superior Court, San Juan County; Geo. A Joiner, Judge.

Action by John A. Soderberg and others against A. C. McRae and wife and the Pacific Coast Portland Cement Company and others. From a judgment for plaintiffs, the named defendants appeal. On motion to dismiss. Motion denied.

James Kiefer and R. E. Morris, for appellants.

CROW J.

Action by John A. Soderberg and Martha Soderberg, his wife, against the Puget Sound Portland Cement Company, a corporation, M. H Walter, A. J. Tennant, Richard A. Ballinger, Orcas Lime Company, a corporation, A. C. McRae, Mary E. McRae, his wife and the Pacific Coast Portland Cement Company, a corporation to quiet title to real estate in San Juan county. From a decree in the plaintiffs' favor, the defendants A. C. McRae, Mary E. McRae, and Pacific Coast Portland Cement Company have appealed.

The respondents have moved to dismiss, for the reason that no notice of appeal has been served upon the defendants A. J. Tennant and Richard A. Ballinger, who had appeared herein. The motion is before us on a short record, undisputed affidavits, and agreed statements of counsel made upon the oral argument. It is conceded that the action was commenced to quiet title, and that the only allegation of the complaint, relative to Tennant and Ballinger, was that they were trustees of the defendant Puget Sound Portland Cement Company, a corporation alleged to have been dissolved. No allegation was made that they held any possession, interest, or title in or to the real estate. No return of service upon them was filed. The defendant Orcas Lime Company, appearing by James Kiefer, its attorney, filed its separate answer. The defendants A. C. McRae, Mary E. McRae, and Pacific Coast Portland Cement Company, appearing by the same attorney, filed their separate answer. In March, 1911, respondents served notice of the taking of depositions upon the defendants, represented by Mr. Kiefer, but made no service upon Tennant and Ballinger, or either or them. The cause was tried on April 12, 1911. At some time on that date, Tennant and Ballinger, without the knowledge of appellants, filed an answer; the clerk's filing fee being paid by respondents. This answer, which was not verified, contained admissions of certain allegations of the complaint, but denied others for want of knowledge or information sufficient to form a belief as to their truth or falsity. No affirmative defense was pleaded; nor did the answer contain any prayer for dismissal for costs, or for any relief whatever. Tennant and Ballinger and their counsel, who signed the answer, each and all of them were absent from the trial, which proceeded without their participation. A. J. Tennant died testate in August, 1911; but his death was not suggested to the trial court, nor was his executrix substituted as a party defendant. Defendants caused the final decree to be entered on October 3, 1911, after his death, and the notice of appeal was served on November 21, 1911. The decree mentions the names of Tennant and Ballinger in its caption only. It adjudges respondents to be the beneficial owners of the land, appoints a commissioner to convey to them, and awards them costs against A. C. McRae, Mary E. McRae, and the Pacific Coast Portland Cement Company. No costs were awarded to or against Tennant or Ballinger. A proposed statement of facts was filed by appellants, and certified by the trial judge. It is conceded that it recites appearances as follows: 'The plaintiff John A. Soderberg appeared in person and by Corwin S. Shank and H. C. Belt, his attorneys; the defendants A. C. McRae and wife and Pacific Coast Portland Cement Company by R. E. Morris and James Kiefer, their attorneys, and the defendant Orcas Lime Company by James Kiefer, its attorney.' No other appearances are mentioned.

In January, 1912, when appellants learned that Tennant and Ballinger had appeared by answer, they procured and filed a disclaimer, which, omitting the title of the cause, reads as follows: 'The undersigned, Richard A. Ballinger, one of the defendants in the above-entitled cause, and Sine I. Tennant, executrix of the last will and testament of and sole devisee in the last will and testament of A. J Tennant, who departed this life on the 19th day of August, 1911, hereby waive the right of appeal in the above-entitled cause and notice of service of appeal and filing of statements of facts, and disclaim and waive all interest in the subject-matter of the above-entitled cause, with the same force and effect as of the date of decree. Dated this 11th day of January, A. D. 1912. Richard A. Ballinger. Sine I. Tennant, as Executrix and Sole Devisee of...