State ex rel. Dahl v. Superior Court for Pierce County

• Decision Date: 26 May 1942
• Docket Number: 28752.
• Citation: 126 P.2d 199,13 Wn.2d 626
• Parties: STATE ex rel. DAHL v. SUPERIOR COURT FOR PIERCE COUNTY et al.
• Court: Washington Supreme Court

126 P.2d 199

13 Wn.2d 626

STATE ex rel. DAHL v. SUPERIOR COURT FOR PIERCE COUNTY et al.

No. 28752.

Supreme Court of Washington

May 26, 1942

Department 1.

Original proceeding by the State of Washington, on the relation of George W. Dahl, for a writ of prohibition directed to the Superior Court of the State of Washington for Pierce County the Honorable Ernest M. Card, Judge thereof, to prohibit respondent from proceeding further in a divorce action instituted by relator's wife.

Writ issued.

J. W. Graham, of Shelton, for relator.

Bertil E. Johnson, of Tacoma, for respondent.

MAIN Justice.

This is an original application in this court for a writ of prohibition directed to the superior court of Pierce county. When the application was made, an order was issued, directed to the superior court to show cause why the writ should not be issued. On the return day, which was May 15, 1942, the parties appeared and a hearing was had.

The facts upon which the application was based may be stated as follows: George W. Dahl and Geraldine Dahl are husband and wife. March 27, 1942, Mr. Dahl brought an action for divorce in the superior court of Mason county. The complaint and summons were filed that day, and the service was made the same day. Mrs. Dahl, on the day mentioned, brought an action for divorce in the superior court of Pierce county. The complaint and summons were filed that day, and Mrs. Dahl sought an order, directed to Mr. Dahl, requiring him to return their three-year old daughter whom she, in her affidavit, said he had wrongfully taken from her. A show cause order was issued on this day, but neither the summons nor the show cause order was served until April 1, 1942. The show cause order was made returnable on the third day of April following.

On the return day, Mr. Dahl appeared specially and challenged the jurisdiction of the superior court of Pierce county. After a hearing, the court took the matter under advisement, and, subsequently, entered an order denying the special appearance and ordering the return of the child to Mrs. Dahl until the further order of the court. After this order was entered, Mr. Dahl appeared in this court, as above stated, and sought a writ of prohibition.

Mr Dahl, as relator, contends that the superior court of Mason county first acquired jurisdiction, and, therefore, the action should be tried in that county. The respondent contends that Mrs. Dahl's action was commenced in the superior court of Pierce county on the same day as was the action in Mason county, and, therefore, that court rightfully retained jurisdiction.

Rem.Rev.Stat § 220, Laws of 1895, chapter LXXXVI, p. 170, provides that 'Civil actions in the several superior courts of this state shall be commenced by the service of a summons, as hereinafter provided, or by filing a complaint with the county clerk as clerk of the court; Provided, that unless service has been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint.'

It will be observed that this section provides that civil actions in the superior court in this state shall be commenced by the service of a summons, as thereinafter provided, or by filing a complaint with the clerk of the court. The proviso is that, unless the summons has been served prior to the filing of the complaint, it is necessary that, within ninety days, it must be served on one or more of the defendants personally, or publication commenced within that time. If the summons is not served personally within the time fixed, or the publication begun within that time, the court obtains no jurisdiction. Prior to the time that the summons is served, after the filing of the complaint, the court's jurisdiction is conditional, and the filing of the complaint is only a tentative commencement of the action and a step in that direction. Both must exist Before the action is commenced.

In the case of City Sash & Door Co. v. Bunn, 90 Wash. 669, 156 P. 854, 856, Ann.Cas.1918B, 31, referring to § 220 of the then code, which is the same section as § 220 in Remington's Revised Statutes, it was said: '* * * We have also repeatedly held--and the holding was inevitable--that, under the provisions of section 220 above quoted, the filing of the complaint is not the commencement of an action, but only a tentative commencement, wholly abortive, unless followed by personal service on one or more defendants, or by the commencement of service by publication within 90 days. 'Both must exist Before the action is commenced,' Deming Inv. Co. v. Ely, 21 Wash. 102, 57 P. 353; Fuhrman v. Power, 43 Wash. 533, 86 P. 940; McPhee v. Nida, 60 Wash. 619, 111 P. 1049.'

In Northern Pac. R. Co. v. State, 144 Wash. 505, 258 P 482, 483, the court in construing the same section of the statute, used this language: '* * * As Before stated, the plaintiff...