Tacoma Grocery Co. v. Draham

• Citation: 36 P. 31,8 Wash. 263
• Parties: TACOMA GROCERY CO. v. DRAHAM.
• Decision Date: 20 February 1894
• Court: Washington Supreme Court

36 P. 31

8 Wash. 263

TACOMA GROCERY CO. v. DRAHAM.

Supreme Court of Washington

February 20, 1894

Appeal from superior court, Mason county; Mason Irwin, Judge.

Action by the Tacoma Grocery Company against M. H. Draham to quiet title to certain land. Judgment for defendant. Plaintiff appeals. Affirmed.

W. I. Agnew and J. W. Robinson, for appellant.

C. W Hartman, for respondent.

HOYT J.

This action was brought by the appellant to quiet the title to a certain piece of real estate as against the defendant. The source of title of each of the parties was the same; both claimed by virtue of execution sales against Henry Bickle Jr. There was no personal service on the defendant, and the validity of the judgments and sales depends upon the regularity of attachment proceedings which were instituted at the time of the commencement of the actions. It clearly appears from the record that the sale under which appellant claims was the first one. and, if valid, conveyed to it a good title. It is contended on the part of the respondent that the judgment under which this sale was made was absolutely void, for the reason that the court never obtained any jurisdiction of the subject-matter. The ground of such contention is that there was no affidavit filed with the clerk as a foundation for the attachment proceedings. Upon this question, the record shows that a paper was filed in the form of an affidavit, signed by a person who represented himself as the attorney for the plaintiff, but there is nothing upon the face thereof to show that it was ever sworn to. Such being the case, the question is presented as to the force to be given such paper. If it should be treated as having no effect, then it must follow that the attachment proceedings founded thereon were absolutely void. It does not appear from the record that the paper was in fact sworn to. If it did, it is probable that, under our liberal statute as to amendment of all papers in attachment proceedings, the omission of the officer to sign the jurat could be treated as a clerical error, and the proceedings sustained. But, in the absence of proof to that effect, there is nothing to show that the facts set up in such paper ever had their truth vouched for by the oath of any person; in other words the paper, upon its face, does not show that it is an affidavit, and there is no proof in the record to supplement the showing upon the face of the paper. It must, therefore for the purposes of this case, be considered as no affidavit at all, and it must follow that there was no foundation whatever for the issuing of the writ of attachment, and that it was absolutely void.

Some cases have been cited by counsel for appellant where the absence of the signature of the officer to the jurat has been held not to be fatal to the proceedings. Such cases, however are not numerous. We have been able to find only two which squarely establish such a doctrine. Wiley v. Bennett, 9 Baxt. 581; Stout v. Folger, 34 Iowa, 71. These cases would be authority for the contention of the appellant that such omission did not render the proceedings void, if the facts shown by the record had been similar to those in the case at bar; but such was not the case. There it was made clearly to appear to the court that the affidavit had been in...