ED. E. WARNER, Respondent,
vs.
SERENA E. MINER et al., Appellants
No. 5764
SUPREME COURT OF WASHINGTON
41 Wash. 98, 82 P. 1033
December 20, 1905, Decided
Appeal from an order of the superior court for Snohomish county,
Yakey, J., entered March 30, 1905, in favor of the plaintiff,
after a hearing on the merits, denying defendants' application to
vacate a judgment foreclosing tax liens.
TAXATION -- FORECLOSURE OF LIEN -- SUMMONS -- SUBSCRIPTION. Under
Bal. Code, § 4882, the original summons for publication in a tax
foreclosure is sufficiently "subscribed" by the attorney for the
plaintiff although the signature is printed.
TAXATION -- NOTICE -- SUMMONS BY PUBLICATION -- NEWSPAPER PRINTED
AND PUBLISHED IN COUNTY -- PROOF -- SUFFICIENCY. Under Bal. Code,
§ 4878, requiring the publication of a summons to be made in a
newspaper printed and published in the county, service by
publication is sufficient where the paper was printed at S. in
said county and sent to and distributed at I. in said county,
although the proof of publication is to the effect that it was
printed and published at I.
TAXATION -- NEWSPAPER -- WHAT IS -- EVIDENCE -- SUFFICIENCY. A
paper eleven by sixteen inches in size, containing four pages of
four columns each, filled with general and local advertisements,
legal notices, and general and local news, issued regularly each
week, with a local circulation of 300 paid subscribers in a town
of about 400 people, is a newspaper of general circulation in
which the publication of summons is authorized.
TAXATION -- RESIDENCE OF DEFENDANTS -- DUTY OF PLAINTIFFS TO
INQUIRE -- STATUTE. An affidavit for the publication of a summons
stating that two of the defendants are nonresidents and that
their addresses are unknown, is sufficient to authorize the
publication of a summons, although it was shown that the affiant
knew that said defendants had acknowledged a deed before a notary
of a certain county in another state, no duty devolving upon him
to ascertain the addresses of the defendants by inquiry of such
notary.
JUDGMENT -- DEFAULT -- INCORPORATION IN JUDGMENT. It is not
necessary upon taking judgment by default to enter the default in
a separate order.
JUDGMENT -- DATE -- CLERICAL ERROR. A clerical error of the
county clerk in recording a judgment by filling up a blank for
the date six days later than the filing date is immaterial, as
the date of the judgment was the date of its filing.
TAXATION -- FORECLOSURE -- JUDGMENT -- FORM -- WHAT TO CONTAIN.
Under Laws 1899, p. 99, § 18, prescribing the form for a judgment
upon the foreclosure of a tax lien, and providing that the court
shall order and direct the clerk to make out an order for the
sale of the property, a judgment containing an order upon the
treasurer to sell the tracts is a sufficient order of sale and a
certified copy of the judgment signed by the judge and attested
by the clerk is all that is required.
JUDGMENTS -- VACATION OF DEFAULT -- NEGLECT OF AGENT --
SUFFICIENCY. Nonresident owners of property sold for taxes do not
show sufficient ground for vacating the judgment by showing that
their agent, a resident of the state, who held the fee and owned
an equitable interest in the land, and who had paid the taxes up
to a certain time, promised to pay the taxes but had failed to do
so.
Brady & Gay, for appellants.
Brownell & Coleman, for respondent.
MOUNT, C.J. DUNBAR, CROW, HADLEY, RUDKIN, and FULLERTON, JJ.,
concur. MOUNT
{*99} 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 {*100} 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 affiant and the
plaintiff. Thereupon service of summons was made by publication.
After the expiration of sixty 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" (Bal. Code, § 4882),
which indicates that the published summons may contain the
subscriber's name printed; and it has {*101} 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; 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 Bal. Code, § 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
eleven by sixteen inches in size and contains four pages, four
columns to the page, and is filled with general and local
advertisements, legal notices, and general {*102} 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 three hundred paid subscribers
in the town of Index, which contained a population of about four
hundred people, and that the paper had an outside circulation
throughout the state of about one hundred 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 Pub. Co. v. Times
Print. Co., 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,
California, by two of the defendants, and by the other defendant
before a notary public in Hennepin county, Minnesota. 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. Bal. Code, § 4877. 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 {*103} the deed was
acknowledged. It is not claimed that the post-office addresses of
the notaries or of the defendants were given in the deed on
record. It is claimed that the notaries at the times the
acknowledgements 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
defendants, and that the information could thus have been
acquired. It is probable that the residences of the defendants
might have been discovered in that way, but it does not follow
that the county officers would have known the addresses of the
notaries, or that the notaries would have known the addresses of
the defendants at the time the suit was brought, because all may
have changed their residences from the places where they resided
when the deed was acknowledged. At any rate, it would have
required more than ordinary diligence to have found the addresses
of defendants in this roundabout way; and since no duty was
imposed by statute upon the plaintiff to inquire, he was not
bound to make such extraordinary inquiry.
(5) No formal entry of default was entered before the judgment
was taken, and appellants claim this as an irregularity. The
appellants were in default as a matter of fact. The judgment
recites: "This cause having this 19th day of August, 1903, been
brought on to be heard upon the application for judgment
foreclosing tax liens herein, on default of each of the above
named defendants, which said default is hereby granted and
allowed by the court." It was not necessary for the court to
enter a default against the defendants in a separate order. It is
common and correct practice to enter the default in the final
judgment.
(6) The judgment recites, "This cause having this 19th day of
August, 1903, been brought on to be heard." Then follows the
findings and judgment, and finally the signature of the trial
judge. This final order bears the clerk's filing mark, "Filed
August 13, 1903. G. W. Adamson, County {*104} Clerk." Appellants
contend that this irregularity is sufficient upon which to vacate
the judgment. The clerk when called as a witness testified that
the judgment was filed on August 13, 1903, with the date at the
beginning of the judgment left blank; that the judgment was
entered on the journal in his office a few days later, when he
mistook the figure 3 for a 9, and by such mistake filled in the
blank at the beginning of the judgment with the figures 19, and
thus made the judgment appear to have been filed six days before
it was signed by the judge. This was clearly a clerical error
which amounted to no irregularity. It could not have been filed
before it was signed. The date of a judgment is the date of its
filing. Quareles v. Seattle, 26 Wash. 226, 66 P. 389.
(7) Appellants next contend that the form of the judgment is not
in accordance with the requirements of the statute. The judgment
order, after finding certain facts, recites:
"That plaintiff herein be given judgment against the property
hereinbefore mentioned for the aforesaid amount of plaintiff's
lien with costs amounting to $ 25.80, which said judgment shall
be a several judgment against each tract or lot or part of a
tract or lot of land hereinbefore mentioned in the amounts set
opposite thereto, as follows."
Then follows a description of each tract of land, with the amount
of taxes delinquent and amount paid for the years after
delinquency, and accrued interest and costs, and the total
amounts of the judgment against each tract. Then follows an order
upon the treasurer to sell the said tracts, according to law, to
satisfy the judgment, with interest and accruing costs. The
judgment and order is signed by the judge and attested by the
clerk. No form of judgment order in tax foreclosure proceedings
is provided by statute. But the law provides:
"The court shall give judgment for such taxes, assessments,
penalties, interest and cost as shall appear to be due upon the
several lots or tracts described in said notice of application
for judgment or complaint, and such judgment shall {*105} be a
several judgment against each tract or lot or part of a tract or
lot for each kind of tax or assessment included therein,
including all penalties, interest and costs, and the court shall
order and direct the clerk to make out and enter an order for the
sale of such real property against which judgment is made, or
vacate and set aside the certificate of delinquency or make such
other order or judgment as in law and equity may be just. Said
order shall be signed by the judge of the superior court and
attested by the clerk thereof and a certified copy of said order,
together with a list of the property therein ordered sold shall
be delivered to the county treasurer, and shall be full and
sufficient authority for him to proceed to sell said property or
so much of each tract or lot as may be necessary for said sum as
set forth in said order and to take such further steps in the
matter as are provided by law." Laws 1899, pp. 299-300, § 18.
Appellants argue that the provision that, "the court shall order
and direct the clerk to make out and enter an order for the sale
of such real property against which judgment is made," is
required to be a part of the judgment, and that the court, by
reason of its limited jurisdiction, has no power to enter a
judgment which does not contain a direction to the clerk to make
out and enter an order of sale. There is no merit in the
contention that the judgment order itself shall contain a
direction to the clerk to make out and enter an order of sale,
because the statute does not require it. It says the court shall
order and direct the clerk to do so. This order and direction, no
doubt, may be made in a separate order, or it may be made orally,
or may be acted upon by the clerk without special direction. The
judgment itself is such an order. When the order of sale is
issued or made out, it shall be signed by the judge and attested
by the clerk, and a certified copy delivered to the county
treasurer. The statute does not provide a form for the order of
sale. We have no doubt that a certified copy of the judgment,
signed by the judge and attested by the clerk, which judgment
orders the property to be sold, is an order of sale in strict
compliance {*106} with the provision of the statute above quoted.
There is, therefore, no irregularity in the form of the judgment.
(8) Appellants next contend that the judgment should be vacated
within the year upon the ground of excusable neglect. The record
shows that the appellants are now, and have been at all times,
non-residents of this state; that they acquired the land in
question in 1890 or 1891; that they owned the fee, and one B.
Mullen, a resident of this state, owned an equitable interest in
the land; that Mr. Mullen paid the taxes up to 1896 or 1897, and
then promised appellants that he would continue to pay the taxes
in the future, having money of appellants for that purpose.
Appellants gave no more attention to the land until 1903, when J.
U. Miner, one of the appellants, requested a friend to find a
purchaser for the land. This friend, in September, 1903, reported
that the land had been sold for taxes to respondent. Appellants
thereupon began negotiations for a settlement with respondent,
but no agreement was reached. Thereupon these proceedings were
commenced. Conceding that the vacation of default tax judgments
falls within the provisions of Bal. Code, § 4880, that section
cannot apply to this case, for the reason that sufficient cause
has not been shown. The only cause shown is that appellants and
their agents have neglected for a period of five years to pay
their taxes. Under the circumstances above stated, the appellants
were probably justified in relying upon their agent; but there is
no excuse offered for the agent. The default of the agent is
necessarily the default of the principal. This case is not
distinguishable upon this point from Williams v. Pittock, 35
Wash. 271, 77 P. 385; Whitney v. Knowlton, 33 Wash. 319, 74 P.
469; or Swanson v. Hoyle, 32 Wash. 169, 72 P. 1011.
We find no error in the record. The judgment is therefore
affirmed.
DISPOSITION
Affirmed.
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