Thompson v. Robbins

• Decision Date: 02 July 1903
• Citation: 72 P. 1043,32 Wash. 149
• Parties: THOMPSON v. ROBBINS.
• Court: Washington Supreme Court

72 P. 1043

32 Wash. 149

THOMPSON v. ROBBINS.

Supreme Court of Washington

July 2, 1903

Appeal from Superior Court, Asotin County; Chester F. Miller, Judge.

Suit by W. L. Thompson against W. D. Robbins, in which there was judgment for plaintiff by default. From an order opening the default and allowing defendant to answer, plaintiff appeals. Appeal dismissed.

Sturdevant & Bailey, for appellant.

Chas L. McDonald, for respondent.

ANDERS, J.

This was an application under the revenue act of March 15, 1897 to the superior court of Asotin county, for a judgment foreclosing a lien for taxes on certain described lands situate in said county and belonging to the respondent. The plaintiff (appellant here) based his right of action on certain delinquent tax certificates issued by the county treasurer in accordance with the statute. The application was duly filed, and summon issued and placed in the hands of the sheriff for service, who stated in his return that the defendant could not be found in said county. An affidavit was then filed setting forth the facts necessary to authorize the service of the summons by publication, and thereupon the summons was published six times in the Asotin Sentinel, a weekly newspaper published in said county, the date of the first publication being February 23, 1901, and of the last publication March 30, 1901. No appearance having been made in the proceeding by or on behalf of the defendant the court, on April 8, 1901, entered a decree foreclosing the lien, and directing a sale of the land for the payment of the taxes levied thereon, together with the statutory penalty interest, and costs. Thereafter, on April 27, 1901, the lands described in the complaint were sold by the county treasurer, in pursuance of the order of the court, and in the manner provided by law, to the plaintiff herein, and afterwards the said treasurer duly executed and delivered a deed to the plaintiff and appellant. Subsequently, and within one year after the rendition of the decree of foreclosure, the defendant, Robbins, filed in the superior court of Asotin county, and served on the attorney for plaintiff, a motion to open the default judgment and to be permitted to answer and defend the action. This motion was made on the ground that no summons had been served on the defendant, and on the further ground that he had a good and valid defense to the action, said motion being based on the records and files in the cause and the affidavit of defendant. The plaintiff demurred to the motion on the ground that it did not state facts sufficient to entitle the defendant to the relief prayed for. The demurrer was overruled, and the motion sustained.

The ruling of the court in sustaining the defendant's motion seems to have been predicated upon the fact, appearing of record, that the judgment and decree of foreclosure was rendered and filed before the expiration of the time within which the defendant had the right to appear and answer. The summons which was published in the foreclosure proceeding required the defendant to 'appear within sixty days after the service of this summons upon you, exclusive of the day of service, and defend this action or pay the amount due together with the costs,' etc. This summons was not in accordance with the statute, and its publication did not confer upon the court jurisdiction to render the judgment which was entered in the foreclosure proceeding. And the judgment was therefore not merely irregular, but void. The revenue act above mentioned, upon which this proceeding was based, as well as the general statute, provides that a summons to be served by publication shall direct the owner of the property subject to the tax lien 'to appear within sixty days after the date of the first publication of the summons, exclusive of the day of said first publication, and defend the action or pay the amount due.' Ballinger's Ann. Codes &...