State v. Superior Court of Pierce County

• Decision Date: 12 May 1893
• Citation: 6 Wash. 352,33 P. 827
• Parties: STATE EX REL. BOYD ET AL. v. SUPERIOR COURT OF PIERCE COUNTY ET AL.
• Court: Washington Supreme Court

33 P. 827

6 Wash. 352

STATE EX REL. BOYD ET AL. v. SUPERIOR COURT OF PIERCE COUNTY ET AL.

Supreme Court of Washington

May 12, 1893

Certiorari by the state on the relation of Dewitt L. Boyd and Mary Boyd against the superior court of Pierce county and Fremont Campbell, judge, to review a judgment of that court. Reversed.

DUNBAR C.J., dissenting.

A. A Knight, for respondents.

ANDERS J.

On December 9, 1890, one M. O. Neill commenced an action in the superior court of Pierce county against the relators to recover the sum of $55.45, alleged to be due for groceries sold and delivered by him to the relators. A writ of attachment was sued out, and levied upon certain real estate in Cavender's addition to the city of Tacoma. Service of the summons was made by publication. On the 21st day of February, 1891, a default judgment was rendered against the defendants for the amount claimed in the complaint, together with interest and costs. Subsequently the defendants moved the court to vacate and set aside the judgment on the ground that the court had no jurisdiction to render it, and that the same was otherwise wrongful and unwarranted. The motion was denied, and thereupon the defendants caused the record to be brought up to this court by writ of certiorari. The respondent moves to quash the writ and to dismiss the proceedings, for the alleged reasons that this court can only issue the writ in aid of its appellate jurisdiction, and that the amount in controversy, being less than $200, is not sufficient to confer jurisdiction upon the court to determine this controversy. While it is undoubtedly true that the supreme court may issue the writ of certiorari whenever necessary to the complete exercise of its appellate jurisdiction, we think it also has jurisdiction to award the writ, in proper cases, where its appellate power is not called into exercise; and as, in proceedings of this character, the court generally looks no further into the case than may be necessary to determine whether the tribunal from which the record comes had jurisdiction, and, if not, or if it exceeded its jurisdiction, or proceeded illegally, whether there is any appeal or any other plain, speedy, and adequate remedy, it would seem to follow that jurisdiction to inquire into such matters could in no wise depend upon the amount in controversy. The motion to dismiss must therefore be denied.

It is contended by the relators that the affidavit for service of the summons by publication was insufficient, and not in accordance with the requirements of the statute, and that publication of the summons was not made for the requisite length of time to confer jurisdiction upon the court to enter judgment by default against them. The statute in force at the time these proceedings were had provided that, in case service cannot be made in any other prescribed manner, by reason of the absence of the defendant, which may be shown by the affidavit of the plaintiff or his attorney, the summons with a brief statement of the object of the action, may be served by publication thereof in some weekly newspaper printed and published and of general circulation in the county in which the court is held, if such newspaper there be, otherwise in some newspaper printed and published in the territory, which summons shall be published not less than once a week for six consecutive weeks, and shall require the defendant to appear and answer the complaint within sixty days from the date of the first publication thereof. And it further provides that before publication of the summons is made the complaint shall be filed with the clerk of the court where the action is pending, and forthwith upon publication the plaintiff shall cause a copy of the summons to be deposited in the post office, the postage thereon being prepaid, directed to the defendant at his place of residence, unless it shall appear that such residence is not known to, or cannot, after reasonable diligence, be ascertained by, the plaintiff or his attorney; and before the hearing of the action the court or judge shall be satisfied by affidavit or other proof that all the provisions therein contained have been complied with, provided that personal service out of the territory (state) shall be equivalent to publication. Laws 1888, pp. 26, 27, § 5. The affidavit upon which the publication was based stated that "Dewitt L Boyd and Mary Boyd are absent from the county of Pierce, and that their place of residence is unknown." Did this affidavit state facts sufficient to authorize the publication of the summons? is the first and principal question...