State ex rel. Gaupseth v. Superior Court for King County, 29840.

• Decision Date: 02 January 1946
• Docket Number: 29840.
• Citation: 164 P.2d 890,24 Wn.2d 371
• Parties: STATE ex rel. GAUPSETH v. SUPERIOR COURT FOR KING COUNTY.
• Court: Washington Supreme Court

164 P.2d 890

24 Wn.2d 371

STATE ex rel. GAUPSETH v. SUPERIOR COURT FOR KING COUNTY.

No. 29840.

Supreme Court of Washington

January 2, 1946

Department 2

Original proceeding in the Supreme Court by the State of Washington on the relation of Kristine Gaupseth, against the Superior Court of the State of Washington for King County, and the Honorable Hugh C. Todd, judge thereof, for writ of prohibition to determine the jurisdiction of the respondent court to hear a petition which sought to set aside property settlement and alimony provisions in an interlocutory decree of divorce granted to relator.

Writ granted.

Adam Beeler and B. H. Camperson, both of Seattle for relator.

Ralph A. Horr, of Seattle, for respondent.

ROBINSON Justice.

On August 14, 1945, Kristine Gaupseth, the relator, was granted an interlocutory decree of divorce in Cause No. 359244, in the superior court of the state of Washington in and for the county of King, entitled: Kristine Gaupseth v. Sigurd Peter Gaupseth. The decree confirmed, ratified, and approved a written agreement previously made by the parties dividing their property. No appeal from the decree was taken, and no final decree has as yet been entered in the action.

On October 19, 1945, Sigurd Peter Gaupseth, defendant in the cause, filed therein the following petition:

'Comes now the defendant in the above entitled action, and moves this Honorable Court for a modification of the Decree of Divorce granted to the plaintiff herein on the 14th day of August, 1945. Said Interlocutory Decree of Divorce provided, among other things, (1) that all of the community property belonging to the plaintiff and the defendant to-wit: approximately $7000 was awarded to the plaintiff and an additional alimony of $50 per month. That when said Interlocutory Decree was granted the defendant had been defaulted, and not represented by counsel.

'That furthermore certain matters affecting the rights of both parties were never presented to this Court.

'Wherefore Defendant prays that this said Interlocutory Decree be set aside and that an equal distribution be made of said properties owned by the community, and for such other and further relief as to this court may seem just and equitable.

'This petition is based upon the affidavit of the defendant attached hereto, and made a part of the herein.'

The attached affidavit contained recitals tending to show that petitioner's signature to the property agreement, which the court had confirmed and adopted in the interlocutory decree, had been secured by fraud. Of these recitals, the most direct was the following: 'That the defendant thinking that he had signed only an agreement to pay $50 per month, and being unfamiliar with the English language, signed the same, not realizing that he had agreed to turn over to the plaintiff the entire assets of the community, worth approximately $7000.00.'

Upon the presentation of the petition and affidavit in the superior court, an order to show cause was issued directing the plaintiff, Kristine Gaupseth, to appear at a date and hour therein fixed '* * * and answer the petition of the petitioner and have the issues upon said petition set for hearing,' and 'It is further ordered by the court that service of the certified copy of this order upon the plaintiff at least three days prior to the return day above fixed shall be due and legal notice of hearing upon said petition.'

A certified copy of the petition, affidavit, and order to show cause was forthwith served upon Mr. Adam Beeler who represented the plaintiff in the divorce action. No service of any of these papers was made upon the plaintiff, Mrs. Gaupseth, the relator here. Mr. Beeler filed, on his client's behalf, the following special appearance and motion to quash: 'Comes now the plaintiff, Kristine Gaupseth, and appearing specially, but not generally, respectfully moves the court to quash purported service of order to show cause, petition for modification of decree and affidavit, for the reason that the same has never been legally served upon her in the manner provided by law. This motion is based upon the records and files herein and the affidavit of the plaintiff attached hereto.'

Upon argument of this motion on December 5th Before the Honorable Hugh C. Todd, one of the judges of the superior court of the state of Washington in and for the county of King, the said judge announced that he would deny the motion to quash, but would not then set the matter for hearing upon the merits if the plaintiff would promptly apply to this court for a writ of prohibition in order to secure a final determination as to the question of jurisdiction.

On December 7th, on relator's application, an order was issued by this court requiring the petitioner to show cause on December 21...