White v. Powers

• Decision Date: 05 February 1916
• Citation: 154 P. 820,89 Wash. 502
• Parties: WHITE v. POWERS et al.
• Court: Washington Supreme Court

154 P. 820

89 Wash. 502

WHITE v. POWERS et al.

Supreme Court of Washington

February 5, 1916

Department 2. Appeal from Superior Court, Lincoln County; Jos. Sessions Judge.

Action by H. P. White against Ed. Powers and others, copartners under the firm name of Powers, Etter & Colwell. Form an order sustaining a demurrer to the complaint and dismissing the action on plaintiff's failure to plead further, plaintiff appeals. Reversed and remanded, with instructions.

Hibschman & Dill, of Spokane, for appellant.

HOLCOMB J.

On October 14, 1913, one W. G. Nelms was the owner of a certain Avery truck automobile, with the serial number 953, motor number 8681, and on that day one E. A. Johnson performed labor and skill and furnished material in repairing it amounting to $13.50.

On December 22, 1913, Johnson, through his agent, filed a written notice of lien upon the automobile truck, describing it, in the office of the county auditor of Lincoln county Wash., the filing and form of notice of lien complying with the provisions of section 1155, Rem. & Bal. Code.

On December 29, 1913, Johnson, through his attorney, delivered to the sheriff of Lincoln county a copy of the chattel lien notice, and demanded that the sheriff take possession of the automobile and sell it for the satisfaction of the lien claim. The sheriff accordingly on that date took into his possession the automobile, and prepared and posted in three public places in the county a notice reciting the claim of lien, the name of the owner of the automobile, and the default in payment, and giving notice of sale of the automobile more than 10 days thereafter on January 9, 1914, at a specified place, at 10 o'clock a. m. The notice was signed by the attorney for the lien claimant as well as by the sheriff. On January 9, 1914, sale was made pursuant to the notice for the sum of $38.85 to the lien claimant, to satisfy his claim and costs, in all aggregating the amount for which the property was bid in, and of all of which the sheriff made return to the county auditor on the same day.

On July 9, 1914, appellant filed his complaint against respondents, alleging the foregoing facts, and further alleging that at all the times mentioned Nelms was a resident of Spokane county, Wash., and was not at any of the times mentioned present in Lincoln county; that no notice of any kind was given to Nelms, except the posted notice of sale; that defendants obtained possession of the automobile by reason of some transaction with Johnson, and that in so doing they and Johnson ignored the rights of Nelms and of appellant, and respondents claim to have the title to the automobile by reason thereof and of the lien and foreclosure proceedings of Johnson, and not otherwise; that all of the proceedings to establish and foreclose the chattel lien were had under and by virtue of statutes relating thereto (specifically mentioned), but that the statutes relied upon are unconstitutional and void under the Constitution of Washington and the Fourteenth Amendment to the Constitution of the United States, and attempted to deprive Nelms of his property without due process of law; that Nelms duly conveyed all his right, title, and interest in the property to appellant by bill of sale, and his claims and demands for damages by an instrument in writing on May 7, 1914; that appellant is now the owner thereof; that the automobile was, at the time of sale referred to and now is, of the value of $1,500, and that Nelms, prior to May 7, 1914, had been injured and damaged by the detention thereof by respondents in the sum of $1,000. For the recovery of the automobile or the value thereof, and $1,000 damages for its detention, judgment was demanded. Defendants demurred upon all the statutory grounds. The demurrer was sustained and the action dismissed upon appellant refusing to further plead.

1. The statute providing for a chattel lien in such cases as this provides (Rm. & Bal. Code, § 1157) that the lien may be foreclosed by the same two optional methods of procedure provided for the foreclosure of chattel mortgages. Section 1105, 1106, and 1107, Rem. & Bal. Code, provide that chattel mortgages may be foreclosed by placing in the hands of the sheriff of the county a notice containing a full description of the mortgaged property with a statement of the amount due, signed by the mortgagee or his attorney; that the notice shall be personally served in the same manner as is provided by law for the service of a summons; that if the mortgagor cannot be found in the county where the mortgage is foreclosed, notice must be published in the same manner and for the same length of time as required in cases of the sale of like property on execution; that is, by posting written or printed copies of the notice of sale in three public places in the county for a period of not less than 10 days prior to the date of sale; that such notice shall be sufficient authority for the officer to take the mortgaged property into his immediate possession. These provisions of the statute were complied with, except that the sheriff made no certificate either of service of the notice of sale upon Nelms, or that he could not then be found in the county. The sheriff's proceeding was therefore prima facie defective. Appellant alleges that Nelms was not, at any of the times recited in the proceedings, present in Lincoln county, thus affirmatively showing that the prerequisite of 'not found in the county' then existed, and a constructive basis of notice by publication in the manner provided by the foreclosure statute might have been certified by the sheriff.

The statute ralating to foreclosure of chattel mortgages upon which this proceeding was based provides that the notice shall be personally served in the same manner as provided by law for the service of a summons. The law providing the manner of serving a summons (Rem. & Bal. Code, § 226, subd 12) provides that the summons shall be served by delivering a copy thereof to the defendant personally, or by leaving a copy of the summons at the house of his usual abode with some person of suitable age and discretion then resident therein. Section 228, Rem. & Bal. Code, provides that, when the defendant cannot be found within the state (of which the return of the sheriff of the county in which the action is brought that the defendant cannot be found in the county is prima facie evidence), and upon the filing of an affidavit of the plaintiff, his agent, or attorney, stating that he believes that the defendant is not a resident of the state or cannot be found therein, and that he has deposited a copy of the summons and complaint in the post office directed to the defendant at his place of residence, unless he has stated in his affidavit that such residence is not known to the affiant, and stating among other things that the defendant is not a resident of the state, but has property therein, and the court has jurisdiction of the subject of the action, the service may be made by...