Waterman v. Bash

• Decision Date: 06 April 1907
• Citation: 46 Wash. 212,89 P. 556
• Parties: WATERMAN v. BASH.
• Court: Washington Supreme Court

89 P. 556

46 Wash. 212

WATERMAN v. BASH.

Supreme Court of Washington

April 6, 1907

Appeal from Superior Court, Island County; Geo. C. Hatch, Judge.

Action by motion by Sara K. Waterman to revive a judgment in her favor against A. W. Bash. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Harold Preston and W. V. Tanner, for appellant.

A. W Bunddress, for respondent.

MOUNT, J.

This action was brought by motion in the court below to revive a judgment in favor of appellant against the respondent. The motion alleged, insubstance, that on May 7, 1900, Sara K Waterman obtained a judgment against the respondent, A. W Bash, for the sum of $22,685.30 and costs in the superior court of Island county in this state; that said judgment was obtained upon a summons duly and regularly served upon the defendant; that no part of said judgment has been paid; and that the same was not appealed from, vacated, or set aside but is in full force and effect, and that there is due thereon the sum of $29,774.60, together with costs. The respondent appeared to this motion and filed an answer, alleging, among other things, that, when the original action was begun and judgment taken therein, he was a nonresident of the state absent therefrom; that no service of summons or complaint was ever made upon him, and that the only service made or attempted to be made was shown by the record therein, as follows: 'Affidavit of Service. State of Washington, County of King--ss.: R. J. Atwell, being first duly sworn upon his oath, deposes and says that at all the times hereinafter mentioned and referred to he has been, and now is, a citizen of the United States, over the age of twenty-one years, and not a party to the within entitled action, and competent to be a witness upon the trial of the same; that he received the annexed summons on the 19th day of January, 1900, and on the 20th day of January, 1900, in the county of King, state of Washington, he duly and regularly served said summons upon within named defendant, A. W. Bash, by then and there delivering to and leaving with Miss E. S. Matthews, at said defendant's residence and usual place of abode, she being a person over the age of twenty-one years and of suitable age and discretion then resident therein, a true and correct copy of said summons, together with a true and correct copy of the complaint in the within entitled action. R. J. Atwell.' That the defendant never in any manner appeared in said action, and judgment was taken by default; that the court acquired no jurisdiction of the person of the defendant; and that the judgment was therefore null and void. The reply of the plaintiff denied the allegations of nonresidence and want of jurisdiction. The case tried solely upon the issue as to the residence and place of abode of the defendant. The trial court made the following findings thereon: 'That continuously between the 1st day of July, 1895, and the 28th day of February, 1906, the defendant, Albert W. Bash, was out of, absent from, and a nonresident of the state of Washington, and that defendant, Albert W. Bash was out of, absent from, and a nonresident of the state of Washington, both at the time of the filing of said complaint in said action and court and at the time of the purported service of the summons and complaint upon him, on the 20th day of January, 1900; and that the said purported service of the summons and complaint in said cause on the defendant, Albert W. Bash, on said 20th day of January, 1900, was made by said R. J. Atwell by delivering to and leaving a copy of said summons and complaint with said Miss. E. S. Matthews, at her residence and usual place of abode in said county of King, state of Washington, but not at the residence nor usual place of abode of the defendant, Albert W. Bash, as stated in an affidavit of service; and that the defendant, Albert W. Bash, had no residence nor usual place of abode in the said county of King on the said 20th day of January, 1900, nor at the time of the purported service of the said summons and complaint on him in said cause, and that no summons nor complaint was ever served on the defendant, Albert W. Bash, in said action.' Upon the entry of the findings, the appellant moved for a judgment against the defendant for $18,500, or, in the event of a denial of the motion, that defendant be required to answer the complaint in the original action within a time to be fixed by the court. The court denied both requests, and entered a judgment dismissing the proceedings to revive the judgment, and also vacating and annulling the original judgment. Plaintiff appeals, and contends (1) that want of service cannot be shown upon collateral attack, except where such want of service appears upon the face of the record; (2) that the answer of the defendant is a collateral attack upon the judgment sought to be revived; (3) that the evidence is insufficient to overcome the recitals of the return of service; and (4) that, in any event, the court should have required defendant to answer the original complaint.

The first two points made by the appellant may be considered together. It may be conceded for the purposes of this case that, as a general rule, want of service cannot be shown upon collateral attack, except where it appears upon the face of the record. Still this court has repeatedly held that, in a proceeding to revive a judgment, the jurisdiction of the court to render the judgment may be attacked by the answer and that such answer is a...