Teater v. King

• Decision Date: 03 May 1904
• Parties: TEATER v. KING.
• Court: Washington Supreme Court

76 P. 688

35 Wash. 138

TEATER v. KING.

Supreme Court of Washington

May 3, 1904

Appeal from Superior Court, King County; Geo. Meade Emory, Judge.

Action by M. M. Teater against Terry King. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Allen Allen & Stratton, for appellant.

Shank &amp Smith, for respondent.

PER CURIAM.

Action for unlawful detainer brought by M. M. Teater, plaintiff and respondent, against Terry King, defendant and appellant, in the superior court of King county. The plaintiff recovered judgment, and defendant appeals.

The complaint was filed in the clerk's office of the lower court on December 26, 1901. It alleged that respondent was and had been since May 15, 1901, in possession of lot 1 and the north half of lot 4, excepting the dwelling house situated upon the easterly end thereof, in block 32 of C. D Boren's Plat of an Addition to Seattle, under verbal lease thereof from month to month; that on November 23, 1901, the respondent sublet to the appellant, from month to month, at a rental of $100 per month, payable in advance, the storeroom comprising the main floor of the building erected upon the westerly portion of said lot 1. The complaint further alleged the payment by appellant of $100, one month's rental, on November 23, 1901; that at the city of Seattle, on the 2d day of December, 1901, the respondent served upon appellant personally a written notice to quit and surrender possession of said premises to respondent on or before December 23, 1901, with which notice appellant refused to comply. Respondent demanded judgment for restitution of premises and damages. On the day of the filing of this complaint, summons and writ of restitution were issued. On the 31st day of December, 1901, pursuant to such writ, appellant was ousted by the sheriff from the possession of the premises. On the same day the appellant made a special appearance by written motion to quash the summons and service thereof. On January 4, 1902, appellant made and filed an amended motion in form of a special appearance, wherein he moved (1) to quash the summons and set aside the service thereof; (2) to set aside and quash the writ of restitution, for the reason that the same was prematurely issued, and that the court had no jurisdiction to issue the same; and (3) to dismiss the said action, for the reason that no summons had been issued and served in said cause as required by law. This amended motion came on for hearing on January 11, 1902. The trial court sustained the motion to quash the summons and set aside the service thereof, but refused to quash the writ of restitution or dismiss the action, to which ruling appellant excepted. The appellant, by his amended answer, filed January 24, 1902, denies the material allegations of the complaint, except the payment of the month's rent, and the refusal to vacate the premises in question as required by the above notice to quit. He specially denies that he unlawfully and wrongfully detained the possession of said premises to respondent's damage. And for an affirmative defense the answer alleges that on or about the 23d day of September, 1900, one Mrs. R. J. Dodds, who was rightfully in possession of the property described in the complaint, did, in writing, lease and demise to one C. M. Spores and one Joseph Gavin the whole lower or main floor of said building (the storeroom described in the complaint) for the period of two years after that date; that said property was a part of the estate of Mary N. Welch, deceased; that on October 1, 1900, in consideration of the payment of $500 by said Dodds, this lease was recognized and ratified by the executor of said estate, who reported the same to the superior court of King county, which lease was approved by said court; that respondent acquired by contract from Mrs. Dodds her interest in said property on or about May 15, 1901, and thereby went into possession of said property, save the storeroom theretofore leased to Spores & Gavin; that respondent agreed to, and did, take said property subject to said lease, recognized the same, and received rental for such storeroom from Spores & Gavin and their successors in interest; that appellant became and was after the 14th day of November, 1901, in the rightful possession of said storeroom as the successor in interest of said Spores & Gavin by purchase; that the said Spores & Gavin, and their successors in interest therein, including appellant, complied in all respects with the terms of said lease; and that on the 31st day of December, 1901, respondent wrongfully and illegally ejected appellant from said storeroom in pursuance of the writ of restitution issued herein. Appellant asked judgment restoring to him the possession thereof, and for costs. The reply puts in issue the material allegations contained in the affirmative defense, and specially alleges that respondent went into possession of the premises on May 15, 1901, under a new and independent tenancy from month to month, and until December 23, 1901, he sublet said storeroom and collected rent therefor.

1. The first two assignments of error allege that the trial court erred in overruling appellant's motions to quash and set aside the writ of restitution and dismiss the action. The record shows that a second summons issued herein on January 13, 1902, pursuant to the order of the court below of that date, above noted, quashing the original summons and setting aside the service thereof. We are of the opinion that a writ of restitution, when issued at the commencement or during the pendency of an action, is governed in the main by the same principles of law as a writ of attachment or other ancillary process in the main cause. The appellant's position is that the action abated when the original summons and service thereof were quashed and set aside, and therefore carried the proceedings for the writ of restitution with it, as an incident, and that the trial court erred in not quashing the writ and dismissing the case. There would be much force in appellant's contention if he had not asked the court below to dismiss the action. The appearance of appellant was, in form, special for the purpose of objecting to the court's jurisdiction over his person, but in the body of his motion he invoked the jurisdiction of the court below on the merits when he asked for a dismissal. A party desiring to successfully challenge jurisdiction over his person should not call into action the powers of the court over the subject-matter of the controversy. By so doing he waives his special appearance, and will be held to have appeared generally. Fitzgerald Const. Co. v. Fitzgerald, 137 U.S. 98, 11 S.Ct. 36, 34 L.Ed. 608; Sayward v. Carlson, 1 Wash. St. 29, 23 P. 830; 2 Enc. Plead. & Prac. 625; Bucklin v. Strickler, 32 Neb. 602, 49 N.W. 371. Some courts hold that in a proceeding, as contradistinguished from an ordinary civil action, a party may move to dismiss such proceeding for defective notice or service thereof, but that jurisdiction over the person is waived by going further, and asking the court or tribunal to grant relief relative to the merits of the controversy. See Perkins v. Hayward, 132 Ind. 95, 31 N.E. 670; 2 Elliott's Gen. Pract. §§ 474-476, and authorities cited. In the light of the rules of law enunciated in the foregoing citations, we reach the conclusion that the trial court committed no error in denying appellant's motion to dismiss the cause.

2. The next contention of appellant presents the proposition regarding the sufficiency of the notice to quit possession of the premises in question. The notice was served on appellant on December 2, 1901, requiring him to surrender possession and vacate the premises 'on or before December 23, 1901 being the expiration of the current monthly period.' Appellant urges that this notice was not given and served a sufficient length of time prior to the expiration of the tenancy to have terminated it under the statute. We think his position...