State v. Superior Court for Snohomish County

• Decision Date: 15 December 1915
• Docket Number: 13140.
• Citation: 153 P. 315,88 Wash. 612
• Parties: STATE ex rel. HOPMAN v. SUPERIOR COURT FOR SNOHOMISH COUNTY.
• Court: Washington Supreme Court

153 P. 315

88 Wash. 612

STATE ex rel. HOPMAN v. SUPERIOR COURT FOR SNOHOMISH COUNTY.

No. 13140.

Supreme Court of Washington, En Banc.

December 15, 1915

Prohibition by the State, on the relation of Anna Hopman, against the Superior Court for Snohomish County. Writ issued.

Cooley & Horan, of Everett, for relator.

E. W Klein, of Snohomish, and Colman & Fogarty, of Everett, for respondent.

MAIN J.

This is an original application in this court for a writ of prohibition directed to the superior court for Snohomish county, and Hon. Guy C. Alston, one of the judges thereof. The facts which authorize the issuance of the writ prayed for, if such writ is to be issued, are as follows:

On July 23, 1910, one Franz Schoenheider, being then the owner of a tract of land in Snohomish county consisting of approximately 80 acres, sold the same upon contract to one Henry Arnold. On July 9, 1914, in an action pending in the superior court for Snohomish county in which Martha Dehne was plaintiff and Franz Schoenheider was defendant, a judgment was entered in favor of the plaintiff and against the defendant in the sum of $8,000. Thereafter, and on the 11th day of August, 1914 the plaintiff caused a writ of garnishment to be issued and served upon Henry Arnold, who had contracted to purchase the land mentioned from Schoenheider. At the time this writ was served Arnold owed upon the contract a balance of $2,900, and interest. After the service of the writ of garnishment, and on the 29th day of August, 1914, Arnold answered the same denying that he was indebted to Schoenheider in any sum whatever, or that he had any effects in his possession or under his control belonging to Schoenheider. This answer was controverted by a reply. Upon the issue thus framed the cause came on to be heard before the superior court. At this hearing it developed from the evidence that on April 22, 1913, Schoenheider had transferred all his rights to the purchase money under the contract of sale to one Anna Hopman, a resident of Cook county, Ill. As stated in the answer here to the application for a writ of prohibition, the trial judge was of the opinion that the transfer to Anna Hopman was without consideration, and was made for the purpose of defauding the creditors of Schoenheider, and particularly the plaintiff in the action wherein judgment had been obtained against him for $8,000.

On the 1st day of March, 1915, the trial court entered an order in which it was recited that Anna Hopman was a necessary party to the action, and that notice thereof, together with a copy of the order directing notice, should be served upon her either personally, or by publication. It was further recited in the order that, if she should fail to appear in the action and defend her title to the land contract, and the money due thereon, that judgment 'may be rendered against the said Henry Arnold and in favor of the plaintiff, and that such judgment shall be a complete discharge to the said Henry Arnold from all liability for the amount remaining due upon said land contract.'

It was then adjudged in the order that Anna Hopman 'be, and she is hereby, made a party defendant in said garnishment proceeding.' It was also adjudged that service of process should be made upon Anna Hopman as a nonresident of the state of Washington. The order contained a form of notice for publication, and also a form of notice for personal service. The order for personal service required Anna Hopman to appear within 60 days after the date of the service of the notice and a copy of the order upon her, and serve 'a copy of your answer to said proceedings' upon the attorneys for the plaintiffs in the original action, giving their names and post office addresses. This notice, under the order of the court, was issued by the clerk thereof, and was subsequently personally served upon Anna Hopman in Cook county, Ill.

On the 21st day of May, 1915, Anna Hopman, responding to the notice, appeared specially in the action, and objected to the jurisdiction of the court, and moved the court to quash the notice directed to her on the ground that the same was not authorized by law. The motion to quash the service was overruled by the trial court. No writ of garnishment was ever served upon Anna Hopman, nor was any other service of any process made upon her other than the one mentioned. After the trial court had overruled the motion to quash the service, this action was begun on the relation of Anna Hopman, praying for a writ of prohibition directed against the superior court for Snohomish county, as already indicated.

The application presents three questions: First. Was the trial court proceeding to determine Anna Hopman's right to the money due from Arnold under the contract of sale without first having acquired jurisdiction of her? Second. If the service of the personal notice and a copy of the order in Cook county, Ill., did not confer jurisdiction, did the appearance entered in the superior court amount to a general appearance? And, third. If no jurisdiction was acquired by the service, and the appearance did not amount to a general appearance, is the relator entitled to the writ of prohibition here sought?

I. Section 228, Rem. & Bal. Code, provides the cases wherein a defendant to an action prosecuted in the courts of this state, and such defendant not being a resident herein, may be served by publication. Section 234 provides that:

'Personal service on the defendant out of the state shall be equivalent to service by publication, and the summons upon the defendant out of the state shall contain the same as personal summons within the state, except it shall require the defendant to appear and answer within sixty days after such personal service out of the state.'

The respondent here, the plaintiff in the action in the superior court, in causing Anna Hopman to be served personally in Cook county, Ill., did not proceed under this section of the statute, and does not claim to have so proceeded. The sections of the statute relied on as justifying the procedure are sections 196 and 69 of the Code (Rem. & Bal.).

Section 196 provides:

'The court may determine any controversy between parties before it when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall cause them to be brought in.'

Section 69 provides:

'When jurisdiction is, by the Constitution of this state, or by statute, conferred on a court or judicial officer all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.'

Statutes authorizing constructive service of process by publication in certain cases where personal service cannot be had exist in many, if not all, of the states of the union. These statutes are in derogation of the common law, and hence are to be strictly construed and closely observed. 32 Cyc. p. 467; Jordan v. Giblin, 12 Cal. 100; Cohn v Kember, 47 Cal. 144; Beckett v. Cuenin, 15 Colo. 281, 25 P. 167, 22 Am. St. Rep. 399; Gilmore v. Lampman, 86 Minn. 493, 90 N.W. 1113, 91 Am. St. Rep. 376; ...