Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

stitution of the United States, and attempted! provides that the summons shall be served to deprive Nelms of his property without due by delivering a copy thereof to the defendant process of law; that Nelms duly conveyed personally, or by leaving a copy of the sumall his right, title, and interest in the prop- mons at the house of his usual abode with erty to appellant by bill of sale, and his some person of suitable age and discretion claims and demands for damages by an in- then resident therein. Section 228, Rem. & strument in writing on May 7, 1914; that Bal. Code, provides that, when the defendappellant is now the owner thereof; that the ant cannot be found within the state (of automobile was, at the time of sale referred which the return of the sheriff of the county to and now is, of the value of $1,500, and in which the action is brought that the dethat Nelms, prior to May 7, 1914, had been fendant cannot be found in the county is injured and damaged by the detention there- prima facie evidence), and upon the filing of of by respondents in the sum of $1,000. For an affidavit of the plaintiff, his agent, or atthe recovery of the automobile or the value torney, stating that he believes that the dethereof, and $1,000 damages for its deten- | fendant is not a resident of the state or cantion, judgment was demanded. Defendants not be found therein, and that he has dedemurred upon all the statutory grounds. The demurrer was sustained and the action dismissed upon appellant refusing to further plead.

[1-3] 1. The statute providing for a chattel lien in such cases as this provides (Rem. & Bal. Code, § 1157) that the lien may be foreclosed by the same two optional methods of procedure provided for the foreclosure of chattel mortgages. Sections 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 relating 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

posited 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 pub lication of the summons. It is provided, however, in section 1106, relating to service of notice of a sale under a chattel mortgage, that if the mortgagor cannot be found in the county where the mortgage is being foreclosed, it shall not be necessary to advertise the notice or affidavit in a newspaper, "but the general publication directed in the next section shall be sufficient service upon all the parties interested." The "next section" is section 1107, Rem. & Bal. Code, which provides that, after notice has been served upon the mortgagor, it 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.

2. Reading and construing these provisions of the various statutes together, it is plain that the legislative enactments intended to provide for due notice, and therefore due process of law. Appellant contends that a statutory enactment which allows foreclosure of a lien against a resident of the state without personal notice violates the constitutional provisions. Section 3, art. 1, Const. Wash.; amendment 14, Const. U. S. There are some authorities which support this view and hold that, where the owner of personal property resides within the state, foreclosure of a chattel mortgage or other lien upon the same can only be lawfully made by giving the owner reasonable notice aside from the mere seizure of the property, and constructive service is insufficient to confer jurisdiction. But that has never been universally followed. Due process of law means according to established forms of law, and the requirement is satisfied by the grant of a right to proceed in equity. Sisson v. Supervisors, 128 Iowa, 442, 104 N. W. 454, 70 L. R. A. 440. In this state it has never been questioned that the proceeding to foreclose a chattel mort

tive service of notice as the statute provides, | case of Anderson v. Great Northern Ry. Co., if substantially followed, is valid. It was 25 Idaho, 433, 138 Pac. 127, cited by appelstated in State v. Allen, 2 McCord (S. C.) 55: lant, is in consonance with our views. In "I think therefore that any legal process which that case it was said: was originally founded in necessity, has been consecrated by time, and approved and acquiesced in by universal consent, must be an exception to the right of trial by jury, and is em; braced in the alternative, 'the law of the land."" To the same effect are In re Hackett, 53 Vt. 354, and Weimer v. Bunbury, 30 Mich. 201.

It will be observed that both the statutes relating to foreclosure of liens upon chattels and relating to foreclosure of chattel mortgages provide that the debtor, or any person interested, may remove a cause to the superior court and contest the right to foreclose as well as the amount claimed to be due. This proceeding recognizes the universal principle adopted in the law of the land

that:

"Due process of law means an orderly proceeding adapted to the nature of the case in which the citizen has an opportunity to be heard; and where such opportunity is granted by the law a citizen cannot complain of the procedure to which he is required to conform." State ex rel. Barber Asphalt Paving Co. V. District Court, 90 Minn. 457, 97 N. W. 132.

There is no vested right in any particular remedy or form of proceeding. A general law administered in its regular course according to the form of procedure suitable and proper to the nature of the case, conformably to the fundamental rules of right and affecting all persons alike, is due process. People v. Apfelbaum, 251 Ill. 18, 95 N. E. 995.

The essential elements of due process of law are notice and opportunity to defend, but due process does not require that any particular form of proceedings be observed, but only that the same shall be regular proceedings in which notice is given of the claim asserted and an opportunity afforded to defend against it. Smith v. Medical Examiners, 140 Iowa, 66, 117 N. W. 1116; Public Clearing House v. Coyne, 194 U. S. 497, 24 Sup. Ct. 789, 48 L. Ed. 1092.

In this state it was held that a statute giving servants, clerks, laborers, etc., the right to claim from the proceeds of execution or attachment sale of the property of their employers any amount not exceeding $100 due them for services rendered within 60 days next preceding the levy of the writ, and providing for the litigation of such claims if disputed, is not open to the objection that it deprives one of his property without due process of law. Gleason v. Tacoma Hotel Co., 16 Wash. 412, 47 Pac. 894. [4] It has also been held that, in proceedings in rem, constructive service by publication is sufficient to give validity to a judgment purely in rem, and constitutes due process of law. Wilson v. Beyers, 5 Wash. 303, 32 Pac. 90, 34 Am. St. Rep. 858. The

give notice, either actual or constructive; and "No process is 'due process' which does not the debt has been created with the knowledge no 'taking of property' for debt is lawful, unless and consent of the debtor. This knowledge and consent may be constructive so far as it is necessary to create a charge against property, but the statute which furnishes the constructive notice must provide process by which the claims may be measured and established, so the property owner may have a ready and certain method of knowing or ascertaining his liability. No such method is furnished by the statute under discussion."

We think the case states the law correctly, but it does not apply to our statutes for foreclosing chattel mortgages or chattel liens. Our statutes provide for due process in that they provide for notice and for an opportunity to be heard in court to measure the claims and rights of the parties.

[5] 3. In Robertson v. Mine & Smelter

Supply Co., 15 N. M. 606, 110 Pac. 1037, the opinion reads as follows:

"It appears that a suit was brought to foreclose a materialman's lien upon a mining claim and decree of foreclosure was awarded. The appellants, owners of the property, were not served with process of any kind. Upon a notice of a proposed sale under the decree of foreclosure appearing in the local newspaper, the appellants brought an action to enjoin the sale. The court complaint, from which judgment appellants apbelow refused the injunction and dismissed the peal. The foreclosure proceeding plainly violated the 'due process of law' clause of the Fourteenth Amendment of the Constitution of the United States. The essential elements of due process of law, as applied to matters of this kind, are notice and opportunity to be heard. Simon v. Craft, 182 U. S. 427, 436 [21 Sup. Ct. 836, 45 L. Ed. 1165]. The judgment of foreclosure was therefore absolutely void as against appellants, the owners of the property."

That case is applicable to the case before us, for the reason that in the case before us the owner of the property and lien debtor was not served with process of any kind, but attempt was made to proceed upon purely constructive notice without any certificate and showing of necessity therefor; the lien debtor being at the time a resident of the state and not even a prima facie showing being made to the contrary. The proceedings in this case, therefore, plainly violated the due process of law clauses of the state and federal Constitutions, although in our opinion the statutes sufficiently comply with those constitutional requirements. The statutes themselves were not complied with. The sale was therefore void.

The judgment is reversed, and the cause remanded, with instructions to reinstate the cause and overrule the demurrer.

MORRIS, C. J., and PARKER, BAUSMAN, and MAIN, JJ., concur.

(89 Wash. 467)

Neill & Burgunder, of Colfax, for appel HARGRAVE et ux. v. CITY OF COLFAX. lants. Chas. F. Voorhees, of Colfax, for re

Feb. 2, 1916.)

(No. 13142.) (Supreme Court of Washington. 1. ACCORD AND SATISFACTION 25-SuffiCIENCY OF PLEADING-STATUTE- "ACCORD.' In view of Rem. & Bal. Code, § 258, abolishing common-law distinctions as to the form of actions or pleadings, and providing that a complaint shall consist of a plain and concise statement of facts constituting the cause of action and a demand for the relief claimed, and section 264, providing that the answer shall contain a general or specific denial of each material allegation of the complaint controverted by defendant, and a statement of any new matter constituting a defense or counterclaim, in ordinary, concise language, without repetition, an affirmative answer by a city in an abutting owner's action for damages from the regrading of a street that the building of a retaining wall by the city made everything satisfactory to the plaintiffs, in the absence of a motion to make more definite or a demurrer thereto, was good as a plea of accord and satisfaction; an "accord" being a satisfaction agreed upon by the parties injuring and the parties injured.

[Ed. Note.-For other cases, see Accord and Satisfaction, Cent. Dig. §§ 151, 153-160; Dec. Dig. 25.

For other definitions, see Words and Phrases,
First and Second Series, Accord.]
2. ACCORD AND SATISFACTION 27 EVI-
DENCE-QUESTION FOR JURY.

Evidence in such action held to make it a question for the jury as to whether the agreement to build or the building of such wall was accepted in satisfaction.

spondent.

HOLCOMB, J. Appellants' action agains respondent was to recover damages by way of diminished market value resulting from the regrade of streets on which their comunity property abuts. The streets being improved were Main and James streets, abutting on appellants' property on two sides. The original grade on both streets was established by ordinance in 1891, and the streets were afterwards physically graded to the established grade. Appellants' property was thereafter improved and adjusted with reference to the grade, and, among other inprovements, a stone wall was built around the property on Main and James streets. Appellant R. G. Hargrave signed the peti tion to the city council to regrade and improve Main and James streets adjacent to the property of appellants. In April, 1912, respondent commenced to improve the streets by regrading and paving. The regrade cut each street at the corner of appellants' preperty about six feet below the old established grade. When the graders began to grade James street, they commenced to cut at the base of appellants' retaining wall without leaving a shoulder. Appellants called the attention of the street committee of the city council to the fact that, if the grade was made in that way, the retaining wall en James street would fall and appellants' property slide onto the street. The street com mittee of the council went to the property, and, in company with R. G. Hargrave, viewed the premises, and decided to build a concrete wall along James street about four feet out from the property line, and fill in behind it so as to hold the old retaining wall in place and prevent it from falling. This wall was afterwards built by the city at its expense. In its answer respondent alleges that, by reason of R. G. Hargrave having signed the petition asking for the street in provements referred to, and the fact that during all the time the improvement was be ing made appellants resided on the property and made no demand for damages prior to the bringing of the suit, they are estopped to claim any damages whatsoever by reason of the matters of which they complain in their complaint. It was also affirmatively alleged In such action the refusal of a requested by respondent, in substance, that the buildinstruction in effect the same as an instructioning of the concrete wall hereinbefore referred given upon the issue was not error.

[Ed. Note.-For other cases, see Accord and Satisfaction, Cent. Dig. §§ 31, 59, 83, 97, 110,

135, 150; Dec. Dig. 27.]

3. HUSBAND AND WIFE 270-AGREEMENT AS TO REGRADE OF STREET-SETTLEMENT OF DAMAGES-SUFFICIENCY OF EVIDENCE.

Evidence in an action by a husband and wife, owners of abutting property, for damages from the regrading of a street, held, in view of Rem. & Bal. Code, § 5918, declaring that the husband shall have the management of the community realty, sufficient to sustain a finding that an agreement to accept the city's construction of a wall as a protection to their property was made for and with both the husband and wife. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 968-971, 973-984, 988; Dec. Dig. 6.270.]

4. ACCORD AND SATISFACTION OF PROOF.

26-BURDEN

In such action the burden was upon the city to support its affirmative plea of an accord and satisfaction.

[Ed. Note. For other cases, see Accord and Satisfaction, Cent. Dig. §§ 162-165; Dec. Dig. ~~26.]

5. TRIAL 260-REQUESTED INSTRUCTIONS— GIVEN INSTRUCTIONS.

to by the respondent, at its expense, would

[Ed. Note. For other cases, see Trial, Cent. make everything perfectly satisfactory to ap Dig. §§ 651-659; Dec. Dig. 260.]

Department 2. Appeal from Superior Court, Whitman County; R. L. McCroskey, Judge.

Action by R. G. Hargrave and wife against the City of Colfax. Judgment for defendant, and plaintiffs appeal. Affirmed.

pellants; and it was further alleged that in all the matters and at all the times referred to by respondent R. G. Hargrave acted for himself and for and on behalf of his wife and coplaintiff, Frances P. Hargrave. Ap pellants unsuccessfully moved to strike from the affirmative answer the allegations that

respondent's pleading it is nowhere alleged that the building of the wall was to be in satisfaction of all damages. It is true that the affirmative answer did not use the specific words "accord and satisfaction," and did not specifically say that the things agreed upon were to be in full satisfaction of all damages. It seems to have used language conforming to the form of the understanding or agreement, which, as shown by the record of the testimony on behalf of respondent, was that the building of the concrete wall and other minor matters by the respondent "would make everything perfectly satisfac

R. G. Hargrave acted for himself and for, was done or given was accepted in satisfacand on behalf of his wife and coplaintiff, tion." 1 Cyc. 343, 344. It is asserted that in that he signed a petition for the improvement of the street, that he at all times knew during the making of the improvement of the plans therefor, and never at any time made any objections, and that he expressed himself satisfied with a proposed 10 per cent. grade of the streets adjacent to their property. Upon the denial of these motions appellants replied, denying certain allegations, and admitting the allegation of respondent's answer that there was an understanding and agreement between the parties that respondent would build at its own expense the concrete wall referred to and in the manner mentioned, but denied that it was then un-tory to appellants." There is no particular derstood and agreed that everything would be perfectly satisfactory to them. They further affirmatively alleged that there was no agreement and understanding between appellants, or either of them, and respondent, that the erection of the wall would compensate them or be in satisfaction for any of the damages claimed in the complaint. At the trial, when the defense rested, upon motion of appellants to strike from the record and to instruct the jury to disregard any and all testimony offered by respondent inverted by the defendant," and "a statement relation to any affirmative matters alleged in its answer, except in regard to values and damages, the court allowed all of appellants' motion, except as to evidence pertaining to the understanding or agreement in connection with the building of the wall. Upon this issue the case was submitted to the jury, and the jury returned a general verdict in favor of respondent, and answered in favor of respondent the following special interrogatory:

"Did plaintiffs and defendant have an understanding or agreement at or about the time defendant agreed to build the concrete wall mentioned in the pleadings whereby or in pursuance of which all damages to plaintiffs' property caused by the regrading of Main and James streets should be fully settled?"

To this interrogatory the jury answered:

"Yes."

magic in words. Our Code abolishes all distinctions formerly existing at common law as to the form of actions or pleadings. It is now provided simply that a complaint must consist of "a plain and concise statement of facts, constituting the cause of action, without unnecessary repetition," and "a demand for the relief which plaintiff claims" (Rem.` & Bal. Code, § 258); that an answer must contain "a general or specific denial of each material allegation of the complaint contro

of any new matter constituting a defense or counterclaim, in ordinary and concise language without repetition" (Rem. & Bal. Code, g 264). Accordingly, under the Code, the pleading is judged by the facts pleaded, and not by any technical rule obtaining under the common law. The allegations of the answer might possibly have been more specific or more technical, but appellants did not move to make them more definite and certain, and did not demur to the answer. No motion of any kind was made against that particular affirmative allegation of the answer upon which the case was submitted to the jury, except the motion, at the conclusion of respondent's evidence, that all testimony of fered by defendant in relation to any affirmative matters alleged by it be disregard

[1] 1. All the errors claimed by appellants ed by the jury. Upon this affirmative allearose out of, or in connection with, the af- gation appellants had joined issue and set firmative answer. As to most of the af- up their version of the contract or agreefirmative answer there is nothing of which ment. They allege that the wall was built appellants can now complain. All of the according to the agreement merely to prevent matters were stricken, and the jury instruct- future damage by the sliding of their proped to disregard the evidence offered in sup- erty. It is immaterial what technical name port of them, except as to the understanding be given to the matter set up in its defense. or agreement between the parties concernIt stated the facts as the Code requires, in ing the building of the concrete wall. It is ordinary and concise language. It certainly claimed by appellants that what was left of was competent to allege and to prove that the affirmative answer was intended by re- the parties had agreed in advance upon the spondent to set up an equitable estoppel, and method of settling the matter of damage considered by the court to raise the question arising from the regrade of the streets; and, of accord and satisfaction. As to the accord upon an allegation and showing that the and satisfaction, it is asserted that it does agreement had been performed by the renot sufficiently plead same; that a plea of spondent, it would certainly be a good and accord and satisfaction "must allege that sufficient defense to the action for damages, what was done or given was in satisfaction either as a legal or an equitable defense. of the cause of action, and also that what | An "accord is a satisfaction agreed upon be

tween the party injuring and the party in- | there was sufficient evidence to warrant the jured." 3 Blackstone, 15. We think ac- jury in finding that the agreement was made cord and satisfaction were here sufficiently alleged.

[2] It is a question for the jury whether the agreement or the performance was accepted in satisfaction. Bahrenburg v. Fruit Co., 128 Mo. App. 526, 107 S. W. 440.

for and with both appellants. Bowers v. Good, 52 Wash. 384, 100 Pac. 848; Pearl Oyster Co. v. S. & M. Ry. Co., 53 Wash. 101, 101 Pac. 503.

3. The court instructed the jury, limiting their consideration of the matters involved in the case to the questions: (1) Was there a contract, understanding, or agreement between the plaintiffs and the defendant made or had at or about the time agreed to build the concrete wall mentioned in the evidence, whereby or in pursuance of which all damages occasioned to plaintiffs were settled by reason of the city erecting the wall? And (2) if there was no such understanding or agreement, then what damages, if any, did

[3] 2. Appellants contend that the wife never agreed to the building of the wall as a settlement of all the questions that might arise between them, that she never was a party to any contract or agreement at all, and that therefore she was not bound by any action taken by her husband involving the taking or damaging of their community property. There is ample evidence to the effect that R. G. Hargrave made the agreement alleged by respondent and as found by the jury. | plaintiffs suffer by reason of the change of Whether Mrs. Hargrave authorized the same grade? is another question.

The appellants joined in their pleadings and joined in the reply to the respondent's affirmative answer. In the reply they admitted that there was a contract between them and respondent, but denied that it was as alleged by respondent. The statute (Rem. & Bal. Code, § 5918) provides that:

"The husband has the management and control of the community real property, but he shall not sell, convey, or incumber the community real estate, unless the wife join with him in executing the deed or other instrument of conveyance by which the real estate is sold, conveyed, or incumbered."

The case of Parke v. Seattle, 8 Wash. 78, 35 Pac. 594, is cited and relied upon by appellants to sustain their contention. In that case it was held that, in an action for damages for the wrongful taking of community real property, the wife was a necessary party plaintiff with the husband; and it was stated that the husband alone could not authorize such taking or damaging of the community real estate in the first instance. The case is of little importance here, however, for the reason that, in this case, the husband and wife are joined in the action, and they admit and allege that a contract was made. Furthermore, there is evidence in the record tending to show that the wife first discovered the nature of the grade or cut that was being made adjacent to their property, that she telephoned her husband, and that her husband came to see the work and called the street committee of the city council to act in the matter. The wife did not testify. Whatever agreement was made was made at their residence. They resided upon the premises all the time. The appellants certainly cannot be heard to say that the community could authorize the husband to act as the agent to make one contract in regard to the matter then in controversy, for the benefit of appellants, and which was acted upon by respondent, but not another. The wife knowingly permitted the husband to deal with the

[4] These instructions were followed by others appropriate to those issues, and the jury were instructed that the burden of proof was upon respondent to support its affirmative allegation. These instructions were excepted to by appellants, and an instruction tendered and refused by the court is also made the basis of a claim of error. Under the issues in the case developed, however, we think the instructions given were proper, and the refusal of the instruction tendered by appellants was not prejudicial.

[5] The requested instruction was, in effect, the same as the instructions given by the court upon the issues submitted to the jury, except that it contained the further direction that, if the jury found by the preponderance of the evidence that R. G. Hargrave did make such agreement, it would not be binding on the plaintiffs unless they further found by a preponderance of the evidence that the plaintiff Frances P. Hargrave also made such agreement or authorized her husband to make such agreement.

Bearing in mind that a part of the affirmative allegation upon this issue of respondent's answer was that R. G. Hargrave was at all times and in all the things referred to acting for and on behalf of himself and his wife, and that there was some evidence tending to support that allegation, and that there was no testimony to the contrary on the part of appellants, and observing further that the court instructed the jury that the burden of proof was upon the defendant to prove by a preponderance of evidence the material allegations of the affirmative matter set up in its answer which had not been admitted by appellants in their reply or during the progress of the trial, we are of the opinion that the court committed no error in giving and refusing instructions.

We find no error. Judgment affirmed.

MORRIS, C. J., and BAUSMAN, MAIN,

« ΠροηγούμενηΣυνέχεια »