State v. Superior Court of Clallam County

• Decision Date: 27 February 1909
• Citation: 52 Wash. 13,100 P. 155
• Parties: STATE ex rel. TRICKEL v. SUPERIOR COURT OF CLALLAM COUNTY.
• Court: Washington Supreme Court

100 P. 155

52 Wash. 13

STATE ex rel. TRICKEL v. SUPERIOR COURT OF CLALLAM COUNTY.

Supreme Court of Washington

February 27, 1909

Mandamus by the State, on the relation of Joshua Trickel, against the Superior Court of Clallam County. Writ denied.

A. A Richardson, for relator.

William Ritchie, for respondent.

GOSE J.

On December 12, 1908, an action was commenced in the superior court of Clallam county, wherein the relator was the plaintiff and one James Gallagher was the defendant, for the recovery of a judgment of a tort. Due service was made on the defendant on said day, and on December 31st he caused certain interrogatories, regularly entitled in the cause, to be served on the relator, which were filed January 4, 1909. In the forenoon of the last-named day, the relator filed a motion for a default judgment, and forwarded the same by mail, together with the affidavit of his attorney, and the files in the cause to the respondent in Island county; his district comprising the counties of Island, Jefferson, and Clallam. In the afternoon of the same day, the defendant, by his counsel, served and filed a demurrer to the complaint, and upon the same day advised the respondent by letter of the service and filing of the interrogatories and the demurrer, and requested him to postpone action in the case until the defendant could be heard. On January 14th the relator served upon the respondent an application for a hearing upon his motion for default and upon the cause of action stated in the complaint. Upon the refusal of the court to hear his motion and grant him a default, an alternative writ was sued out of this court, which the relator now seeks to have made permanent, commanding the respondent to hear and determine such motion. To this writ the respondent has both demurred and answered, which he may do under the rule announced in State ex rel. Jefferson County v Hatch, 36 Wash. 164, 78 P. 796. The answer, among other things, recites that it is the opinion of the respondent that the service of the interrogatories within the 20 days constitutes an appearance in the cause, and entitles the defendant in the original cause to notice of all subsequent proceedings, and that the defendant had not been served either with the motion for default or with notice of the application to have the same heard. The relator urges that the defendant was in default, and therefore not entitled to notice of the further proceedings in the case. The only point to be determined is whether the service of the interrogatories upon the relator was an appearance within the meaning of the statute. The law applicable to these facts will be found in 2 Ballinger's Ann. Codes & St. § 4886 (Pierce's Code, § 342), the pertinent part of which is as follows: 'A defendant appears in an action when he answers, demurs, makes any application for an order therein or gives the plaintiff written notice of his appearance. After appearance a defendant is entitled to notice of all subsequent proceedings.' Did the service of the interrogatories constitute 'written notice of his appearance'? In the solution of this question it becomes germane to inquire the purpose of this statutory provision. Evidently the object to be accomplished was that the plaintiff might be apprised of the course to be pursued by the defendant, and whether he intended to litigate the case. Our Code enjoins upon the courts the duty of giving a liberal interpretation to its provisions. Had the defendant served upon the relator a written instrument which simply stated that he had appeared in the action, no question could have been raised as to its compliance with the statute. The very purpose of the Code was to simplify the practice, and this can be best accomplished by looking at the substance rather than the form of matters requiring consideration....