(S. Ct. 1909). THE STATE OF WASHINGTON, on the Relation of Joshua Trickel,
Plaintiff,
vs.
THE SUPERIOR COURT FOR CLALLAM COUNTY, Respondent
No. 7879
SUPREME COURT OF WASHINGTON
52 Wash. 13, 100 P. 155
February 27, 1909, Decided
Application filed in the supreme court, January 25, 1909, for a
writ of mandamus to compel the superior court for Clallam county,
Still, J., to enter a judgment of default.
MANDAMUS -- PLEADING -- ANSWER. Upon application for a writ of
mandamus, the defendant may both demur and answer.
APPEARANCE -- WHAT CONSTITUTES -- FILING DEMAND FOR
INTERROGATORIES. The service by defendant of interrogatories,
within twenty days, constitutes an appearance, under a liberal
construction of Bal. Code, § 4886, providing that a defendant
appears when he answers, demurs, or makes any application for an
order, or gives plaintiff written notice of appearance.
A. A. Richardson, for relator.
William B. Ritchie, for respondent.
GOSE, J. RUDKIN, C.J., CHADWICK, FULLERTON, DUNBAR, CROW, and
MOUNT, JJ., concur. GOSE
{*13} On December 12, 1908, an action was commenced in the
superior court of Clallam county, wherein the relator was the
plaintiff and one James Gallagher was the defendant, for the
recovery of a judgment on a tort. Due service was made on the
defendant on said day, and on December 31 he caused certain
interrogatories, regularly entitled in the cause, to be served on
the relator, which were filed January 4, 1909. In the forenoon of
the last-named day, the relator filed a motion for a default
judgment, and forwarded the same by mail, together with the
affidavit of his attorney, and the files in the cause, to the
respondent in Island county, his district comprising the counties
of Island, Jefferson, and Clallam. In the afternoon of the same
day, the defendant, by his counsel, served and filed a demurrer
to the {*14} complaint, and upon the same day advised the
respondent by letter of the service and filing of the
interrogatories and the demurrer, and requested him to postpone
action in the case until the defendant could be heard. On January
14, the relator served upon the respondent an application for a
hearing upon his motion for default and upon the cause of action
stated in the complaint. Upon the refusal of the court to hear
his motion and grant him a default, an alternative writ was sued
out of this court, which the relator now seeks to have made
permanent, commanding the respondent to hear and determine such
motion.
To this writ the respondent has both demurred and answered, which
he may do under the rule announced in State ex rel. Jefferson
County v. Hatch, 36 Wash. 164, 78 P. 796. The answer, among other
things, recites that it is the opinion of the respondent that the
service of the interrogatories within the twenty days constitutes
an appearance in the cause, and entitles the defendant in the
original cause to notice of all subsequent proceedings, and that
the defendant had not been served either with the motion for
default or with notice of the application to have the same heard.
The relator urges that the defendant was in default, and
therefore not entitled to notice of the further proceedings in
the case. The only point to be determined is whether the service
of the interrogatories upon the relator was an appearance, within
the meaning of the statute. The law applicable to these facts
will be found in Bal. Code, § 4886 (P.C. § 342), the pertinent
part of which is as follows:
"A defendant appears in an action when he answers, demurs, makes
any application for an order therein, or gives the plaintiff
written notice of his appearance. After appearance a defendant is
entitled to notice of all subsequent proceedings."
Did the service of the interrogatories constitute "written notice
of his appearance?" In the solution of this question it becomes
germane to inquire the purpose of the statutory provision. {*15}
Evidently the object to be accomplished was that the plaintiff
might be apprised of the course to be pursued by the defendant,
and whether he intended to litigate the case. Our code enjoins
upon the courts the duty of giving a liberal interpretation to
its provisions. Had the defendant served upon the relator a
written instrument which simply stated that he had appeared in
the action, no question could have been raised as to its
compliance with the statute. The very purpose of the code was to
simplify the practice, and this can be best accomplished by
looking at the substance, rather than the form, of matters
requiring consideration. It, therefore, follows that the service
of the interrogatories was a substantial compliance with the
statute, and that in legal effect it gave the relator written
notice that the defendant had appeared. This construction is not
without support in the authorities. In considering the question
as to what constitutes an appearance, 3 Cyc., p. 504, par. 5,
announces the following rule:
"Any action on the part of a defendant, except to object to the
jurisdiction, which recognizes the case as in court, will amount
to a general appearance."
The Nevada court, in discussing the question as to whether the
statutory methods of appearance are exclusive, in Curtis v.
McCullough, 3 Nev. 202, 212-13, thus states the rule:
"We cannot believe that the legislature intended to say that a
defendant could not appear in an action except by filing an
answer, demurrer, or giving written notice to the plaintiff. He
certainly can in fact appear. We cannot therefore sanction the
doctrine that he cannot appear so as to give the court
jurisdiction of his person in any way except as specified in the
section above referred to."
In Baizer v. Lasch, 28 Wis. 268, page 271, this view received
support in the following language:
"The demand for a bill of particulars in the action before the
justice was a proceeding to the merits, and a full appearance by
Lasch, the defendant."
{*16} This construction is further recognized in Long v.
Newhouse, 57 Ohio St. 348, 369, 49 N.E. 79, in the following
language:
"It appears from the record in this case, that before the
defendants filed their answer, in which they for the first time,
by the first defense, challenged the court's jurisdiction of
their persons, they had taken various objections to the
plaintiff's petition. On November 2, 1893, by leave of the court
first obtained some days before, they filed a motion to compel
the plaintiff to attach to his petition an account of the items
of his claim. This having been overruled, they afterward, on
leave, filed a motion to require the plaintiff to separately
state and number his causes of action; and this having been
overruled, on February 5, 1894, they filed a motion to require
the plaintiff to strike out various averments in his petition,
being the motion heretofore noticed. This having been overruled,
being the motion heretofore notice. This having been overruled,
they sought leave to answer, and, the leave having been given,
filed an answer, in the first defense of which they now challenge
the court's jurisdiction over their persons. Manifestly, they
could not do this after the numerous instances in which they had
submitted themselves to its jurisdiction by invoking its judgment
on the legal completeness, as well as the sufficiency of the
plaintiff's petition."
Relator has called our attention to the case of Vrooman v. Li Po
Tai, 113 Cal. 302, 45 P. 470, as supporting his view. We do not
regard it as authority here, as the court expressly states that
the "defendant entered into no stipulation in regard to the
case," and that he made no appearance. The service of the
interrogatories was a recognition on the part of the defendant
that the case was in court, and through these interrogatories he
sought to have the relator amplify the facts stated in the
complaint. The fact that the interrogatories were prematurely
served does not affect the question of appearance. Upon both
principle and authority the defendant brought himself within the
spirit of the statute, and was entitled to notice "of all
subsequent proceedings."
For the reasons stated the writ will be denied.
DISPOSITION
Denied.
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