Whitney v. Knowlton
| Citation | 33 Wash. 319,74 P. 469 |
| Parties | WHITNEY v. KNOWLTON. |
| Decision Date | 03 December 1903 |
| Court | United States State Supreme Court of Washington |
Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.
Action by L. H. Whitney against Jerry D. Knowlton. From an order denying a motion to open a default judgment, defendant appeals. Affirmed.
Hiram C. Gill, Heber B. Hoyt, and Hermon S. Frye for appellant.
F Campbell, for respondent.
In 1898 the appellant was the owner of two certain lots in the city of Tacoma, which were duly assessed for that year by the proper authorities for state, county, and city taxes. The taxes were suffered to become delinquent, and were paid by the respondent, who took out a certificate of delinquency therefor. Subsequently the respondent paid the taxes for the years 1900 and 1901, and in August of 1902 commenced an action to foreclose his lien for the same. Service of the summons in the action was made by publication. No appearance was made by the appellant, and judgment was entered in the proceedings as upon a default foreclosing the lien and directing a sale of the property to satisfy the same. The property was afterwards sold on an execution issued on the judgment, at which sale the respondent became the purchaser, whereupon a deed of the property was issued to him. Afterwards, and prior to the expiration of a year from the date of the judgment, the appellant appeared, and moved the court to vacate the default, set aside the judgment, and cancel and declare void the deed, supporting his motion with sundry affidavits filed therewith. The respondent resisted the motion, filing counter affidavits, after which the matter was heard by the court, and the motion denied. This appeal is from the order denying the motion.
Three errors are assigned for reversal: (1) That the affidavit for publication of summons is false and untrue; (2) that the affidavit for publication of summons was not filed with the clerk of the court until three days after the same had been verified; and (3) that the applicant was entitled to have the sale set aside as a matter of right under section 4880 Ballinger's Ann. Codes & St.
The first objection urged calls for an examination of the evidence before the trial court, and this has not been brought here by the record. The questions of fact at issue were tried on affidavits, and the appellant has caused a part or all of them to be transcribed by the clerk, and certified into this court by that officer as a part of the transcript. We have repeatedly held that affidavits brought into this court in this manner cannot be considered; that, before they can be considered, they must be brought into the record by a bill of exceptions or statement of facts, and authenticated by the certificate of the trial judge, so that this court may know that it tries the questions of fact submitted upon the same evidence and upon all the evidence that the trial court had before it. This question was recently reviewed by the court in the case of Chevalier & Co. v Wilson, 30 Wash. 227, 70 P. 487, where the cases will be found collected. The affidavit of nonresidence on which the publication of summons was based was verified on August 15 1902, and filed with the clerk of the court on August 18, 1902, and it is argued that such an unreasonable length...
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Union Bay Preservation Coalition v. Cosmos Development & Admin. Corp.
...This court adopted the doctrine of substantial compliance early in the development of Washington's common law. See Whitney v. Knowlton, 33 Wash. 319, 322, 74 P. 469 (1903). The majority declines to apply the doctrine of substantial compliance to APA appeals because it believes the statutory......
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Santore, Application of
...has been substantially complied with and no substantial rights have been jeopardized. 1A C. Sands, supra § 25.03. In Whitney v. Knowlton, 33 Wash. 319, 74 P. 469 (1903), the trial court denied a motion to set aside a default judgment against a nonresident defendant, although the plaintiff h......
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Bartell v. Morken
...not delive that any presumption of a change in the state of facts during an interval of two days could fairly arise.' In Whitney v. Knowlton, 33 Wash. 319, 74 P. 469, a motion was made to vacate a default judgment rendered upon the foreclosure of a tax lien, one of the grounds being that th......
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McCormick v. Okanogan County
...compliance is sufficient. Golden Gate Hop Ranch, Inc. v. Velsicol Chem. Corp., 66 Wash.2d 469, 403 P.2d 351 (1965); Whitney v. Knowlton, 33 Wash. 319, 74 P. 469 (1903). The appellant cites State ex rel. Uhlman v. Melton, 66 Wash.2d 157, 401 P.2d 631 (1965), a mandamus action in which certai......