Warner v. Miner

• Decision Date: 20 December 1905
• Citation: 82 P. 1033,41 Wash. 98
• Parties: WARNER v. MINER et al.
• Court: Washington Supreme Court

82 P. 1033

41 Wash. 98

WARNER v. MINER et al.

Supreme Court of Washington

December 20, 1905

Appeal from Superior Court, Snohomish County; John B. Yakey, Judge.

Proceedings by Ed. E. Warner against Serena E. Miner and others to foreclose tax certificates. From an order denying an application to vacate a default judgment in favor of plaintiff, defendants appeal. Affirmed.

Brady &amp Gay, for appellants.

Brownell & Coleman, for respondent.

MOUNT C.J.

This appeal is from an order denying an application to vacate the judgment in a tax foreclosure suit. The application was made in the original action by motion and petition combined. The record in the case shows that the taxes on certain real estate, for the years 1899, 1900, and 1901, became delinquent, and certificates of delinquency were purchased by respondent, who, in June, 1903, commenced proceedings in the superior court of Snohomish county, where the land is located, to foreclose such certificates. The sheriff of said county made a return of the summons, to the effect that none of the defendants could be found in said county. One of the attorneys for the plaintiff in that proceeding thereupon made and filed an affidavit to the effect that all of the defendants were nonresidents of the state, and that the place of residence of each of the defendants was unknown to the affidavit and the plaintiff. Thereupon service of summons was made by publication. After the expiration of 60 days from the date of the first publication of the summons, and on August 13, 1903, a judgment of foreclosure was entered, which judgment directed the county treasurer of said county to sell the premises, or so much thereof as was necessary to satisfy the judgment. The county treasurer advertised the property for sale, and subsequently, on August 29, 1903, sold the same, and respondent became the purchaser at such sale. On June 10 1904, appellants filed their application to vacate the judgment. After a hearing upon the merits, the application was denied. The facts alleged in the petition and shown on the hearing will be stated in connection with the points upon which appellants rely for a reversal.

1. Appellants first contend that the court acquired no jurisdiction to enter the judgment, because the service was acquired by publication, and the original summons which was published contained the printed names of the attorneys, while the statute requires the summons to be 'subscribed' by the plaintiff or his attorneys. Appellants insist that the printed signature is insufficient. No authority is cited to sustain this contention. Our statute provides that proof of service shall be by affidavit of the publisher showing the same, 'together with a printed copy of the summons as published' (section 4882, 2 Ballinger's Ann. Codes &amp St.), which indicates that the published summons may contain the subscriber's name printed, and it has been held that where the statute requires the summons to be subscribed by the plaintiff or his attorney, it is not essential that the signature shall be written in the hand of the plaintiff or his attorney. A printed or stamped signature is sufficient when it is adopted as the signature of either. Mezchen v. More, 54 Wis. 214, 11 N.W. 534; Herrick v. Morrill, 37 Minn. 250, 33 N.W. 849, 5 Am. St. Rep. 841; 7 Words & Phrases, p. 6729. This is, without doubt, the correct rule.

2. The statute requires that the publication of a summons shall be made in a newspaper printed and published in the county where the action is brought. 2 Ballinger's Ann. Codes & St. § 4878. The affidavit of publication stated that the summons was published in the Index Miner, a newspaper of general circulation, 'printed and published at Index, in Snohomish county, Wash.' At the trial the publisher testified that the newspaper was printed at Snohomish, and sent to the town of Index where it was distributed through the mails to its subscribers. Appellants contend that the affidavit of the publisher was therefore false, and that the jurisdiction of the court, depending upon the truthfulness of the affidavit, must therefore fail. While the newspaper was not printed at Index, it was, under this showing, published at that place. The fact that it was not printed at Index is wholly immaterial, because the statute requires only that the newspaper shall be printed and published in the county. Both Snohomish and Index are within Snohomish county, and the affidavit therefore complied with the statute, even though the affidavit stated it was printed at Index, when as a fact it was printed at Snohomish, in said county. The misstatement of an immaterial fact is not fatal.

3. Appellants contend that the paper in which the summons was published is not a newspaper within the meaning of the statute. A copy of the paper is attached to the record as an exhibit. It is 11 by 16 inches in size and contains four pages, four columns to the page, and is filled with general and local advertisements, legal notices, and general and local news items, and has all the appearances of a small newspaper. The publisher testified that at the time of the trial the newspaper had a local circulation of about 300 paid subscribers in the town of Index, which contained a population of about 400 people, and that the paper had an outside circulation throughout the state of about 100 copies, and that when the summons in question was published the paper had a circulation somewhat greater than at the time of the trial; that it was issued regularly each week, and had been so issued for several years. Under the rule announced in Puget Sound Publishing Company v. Times Printing Company, 33 Wash. 551, 74 P. 802, this was a newspaper of general circulation in which summons was authorized to be published.

4. It is conceded that no copies of the complaint or summons were mailed to the defendants, and respondent testified that he knew there was a deed on record in Snohomish county which was acknowledged before a notary public in Siskiyou county, Cal by two of the defendants, and by the other defendant before a notary public in Hennepin county, Minn. An affidavit was filed, in which it was stated that neither the respondent nor his attorneys knew the place of residence of the appellants, nor any of them. It is not contended that this affidavit was false, but it is claimed that the information above stated in relation to the deed which was of record in Snohomish county, made it the duty of respondent to inquire, and that a reasonable inquiry would have revealed the residence of defendants. The statute does not impose the duty on a plaintiff to inquire as to the residence of nonresident defendants. It simply requires him to state the fact that such residence is not known to the affiant. Section 4877, 2 Ballinger's Ann. Codes & St. But, conceding without deciding that the plaintiff must use reasonable diligence to find the residence of a defendant, we think there is nothing here which, by the use of such diligence, would have disclosed the residence of the defendants. It is not shown when the deed was acknowledged. It is not claimed that the postoffice addresses of the notaries or of the defendants were given in the deed on record. It is claimed that the notaries at the time the acknowledgments were taken were within certain counties. It is also claimed that the respondent, by writing letters to the county officers of such counties, could have located the notaries, and then the notaries could have located the...