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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 si all his right, title, and interest in the prop-mons at the house of his usual abode 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 defens. appellant is now the owner thereof; that the ant cannot be found within the state o automobile was, at the time of sale referred which the return of the sheriff of the count to and now is, of the value of $1,500, and in which the action is brought that the de that Nelms, prior to May 7, 1914, had been fendant cannot be found in the Count B injured and damaged by the detention there- prima facie evidence), and upon the filing or of by respondents in the sum of $1,000. For an affidavit of the plaintiff, his agent, or at the recovery of the automobile or the value torney, stating that he believes that the de thereof, and $1,000 damages for its deten-fendant is not a resident of the state or can tion, judgment was demanded. Defendants not be found therein, and that he has de demurred upon all the statutory grounds. posited a copy of the summons and complaint The demurrer was sustained and the action in the post office directed to the defendant at dismissed upon appellant refusing to further his place of residence, unless he has stated plead.

in his affidavit that such residence is at [1-3] 1. The statute providing for a chattel known to the affiant, and stating among oth lien'in such cases as this provides (Rem. & er things that the defendant is not a resideat Bal. Code, 8 1157) that the lien may be fore- of the state, but has property therein, and closed by the same two optional methods of the court has jurisdiction of the subject of procedure provided for the foreclosure of the action, the service may be made by pob chattel mortgages. Sections 1105, 1106, and lication of the summons. It is provided, hos1107, Rem. & Bal Code, provide that chattelever, in section 1106, relating to service of mortgages may be foreclosed by placing in notice of a sale under a chattel mortga? the hands of the sheriff of the county a no- that if the mortgagor cannot be found in the tice containing a full description of the mort | county where the mortgage is being forë gaged property with a statement of the closed, it shall not be necessary to advertise amount due, signed by the mortgagee or his tbe notice or affidavit in a newspaper, but attorney; that the notice shall be personally the general publication directed in the best served in the same manner as is provided section shall be sufficient service upon all the by law for the service of a summons; that parties interested.” The “next section" is if the mortgagor cannot be found in the coun- section 1107, Rem. & Bal. Code, which pro ty where the mortgage is foreclosed, notice vides that, after notice has been served opmust be published in the same manner and on the mortgagor, it must be published in the for the same length of time as required in same manner and for the same length of cases of the sale of like property on execu- time as required in cases of the sale of like tion; that is, by posting written or printed property on execution. copies of the notice of sale in three public 2. Reading and construing these provision places in the county for a period of not less of the various statutes together, it is plain than 10 days prior to the date of sale; that that the legislative enactments intended to such notice shall be sufficient authority for provide for due notice, and therefore due the officer to take the mortgaged property process of law. Appellant contends that into his immediate possession. These provi- statutory enactment which allows foreclosure sions of the statute were complied with, ex- of a lien against a resident of the state with cept that the sheriff made no certificate ei-out personal notice violates the constitutionther of service of the notice of sale upon al provisions. Section 3, art. 1, Const. Washi. Nelms, or that he could not then be found amendment 14, Const. U. S. There are some in the county. The sheriff's proceeding was authorities which support this view and hold therefore prima facie defective. Appellant that, where the owner of personal property alleges that Nelms was not, at any of the resides within the state, foreclosure of ! times recited in the proceedings, present in chattel mortgage or other lien upon the same Lincoln county, thus affirmatively showing can only be lawfully made by giving the onthat the prerequisite of “not found in the er reasonable notice aside from the mere seicounty" then existed, and a constructive basis zure of the property, and constructive service of notice by publication in the manner pro- is insufficient to confer jurisdiction. But vided by the foreclosure statute might have that has never been universally followed. been certified by the sheriff.

Due process of law means according to ease The statute relating to foreclosure of chat- tablished forms of law, and the requirement tel mortgages upon which this proceeding is satisfied by the grant of a right to pro was based provides that the notice shall be ceed in equity. Sisson v. Supervisors, 13 personally served in the same manner as pro- Iowa, 442, 104 N. W. 454, 70 L. R. A. 410. In vided by law. for the service of a summons. this state it has never been questioned that The law providing the manner of serving a the proceeding to foreclose a chattel mort

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tive service of notice as the statute provides, 1 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.) 57: 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 “No process is due process' which does not consecrated by time, and approved and acqui-| give notice. either actual or constructive: and esced in by universal consent, must be an ex

| no 'taking of property' for debt is lawful, unless ception to the right of trial by jury, and is em

the debt has been created with the knowledge braced in the alternative, 'the law of the land.'”

and consent of the debtor. This knowledge and To the same effect are In re Hackett, 53 consent may be constructive so far as it is necesVt. 354, and Weimer v. Bunbury, 30 Mich.

imer Bunbury. 30 Mich. sary to create a charge against property, but 201.

the statute which furnishes the constructive no

tice must provide process by which the claims It will be observed that both the statutes

may be ineasured and established, so the proprelating to foreclosure of liens upon chattels erty owner may have a ready and certain method and relating to foreclosure of chattel mort of knowing or ascertaining his liability. No

such method is furnished by the statute under gages provide that the debtor, or any person

discussion." interested, may remove a cause to the su

We think the case states the law correctly, perior court and contest the right to foreclose as well as the amount claimed to be

but it does not apply to our statutes for due. This proceeding recognizes the univer

foreclosing chattel mortgages or chattel liens. sal principle adopted in the law of the land

Our statutes provide for due process in that that:

they provide for notice and for an oppor“Due process of law means an orderly pro

tunity to be heard in court to measure the ceeding adapted to the nature of the case in claims and rights of the parties. which the citizen has an opportunity to be (5) 3. In Robertson v. Mine & Smelter heard; and where such opportunity is granted

Supply Co., 15 N. M. 606, 110 Pac, 1037, the by the law a citizen cannot complain of the procedure to which he is required to conform.".

"to conform." opinion reads as follows: State ex rel. Barber Asphalt Paving Co. v. "It appears that a suit was brought to foreDistrict Court, 90 Minn. 457, 97 N. W. 132.

close a materialman's lien upon a mining claim There is no vested right in any particular and decree of foreclosure was awarded. The apremedy or form of proceeding. A general

pellants, owners of the property, were not served

" with process of any kind. Upon a notice of a law administered in its regular course ac- | proposed sale under the decree of foreclosure apcording to the form of procedure suitable pearing in the local newspaper, the appellants and proper to the nature of the case, con brought an action to enjoin the sale. The court

below refused the injunction and dismissed the formably to the fundamental rules of right

complaint, from which judgment appellants apand affecting all persons alike, is due process.

peal. The foreclosure proceeding plainly violatPeople v. Apfelbaum, 251 Ill. 18, 95 N. E. ed the 'due process of law' clause of the Four995.

teenth Amendment of the Constitution of the

United States. The essential elements of due The essential elements of due process of

process of law, as applied to matters of this law are notice and opportunity to defend, kind, are notice and opportunity to be heard. but due process does not require that any Simon v. Craft, 182 U. S. 427, 436 (21 Sup. Ct. particular form of proceedings be observed,

1836, 45 L. Ed. 1165). The judgment of fore

closure was therefore absolutely void as against but only that the same shall be regular pro

appellants, the owners of the property.” ceedings in which notice is given of the claim

That case is applicable to the case before asserted and an opportunity afforded to de

us, for the reason that in the case before fend against it. Smith v. Medical Examin

us the owner of the property and lien debtor ers, 140 Iowa, 66, 117 N. W. 1116; Public

was not served with process of any kind, Clearing House v. Coyne, 194 U. S. 497, 24 Sup. Ct. 789, 48 L. Ed. 1092.

but attempt was made to proceed upon pure

ly constructive notice without any certificate In this state it was held that a statute giving servants, clerks, laborers, etc., the

and showing of necessity therefor; the lien right to claim from the proceeds of execu

debtor being at the time a resident of the tion or attachment sale of the property of

state and not even a prima facie showing their employers any amount not exceeding

being made to the contrary. The proceed$100 due them for services rendered within

ings in this case, therefore, plainly violated 60 days next preceding the levy of the writ,

the due process of law clauses of the state and providing for the litigation of such

and federal Constitutions, although in our claims if disputed, is not open to the objec

opinion the statutes sufficiently comply with tion that it deprives one of his property

those constitutional requirements. The statwithout due process of law. Gleason v. Ta

utes themselves were not complied with. coma Hotel Co., 16 Wash. 412, 47 Pac. 894.

The sale was therefore void. [4] It has also been held that, in proceed

The judgment is reversed, and the cause ings in rem, constructive service by publica remanded, with instructions to reinstate the tion is sufficient to give validity to a judg- | cause and overrule the demurrer. ment purely in rem, and constitutes due process of law. Wilson v. Beyers, 5 Wash. MORRIS, C. J., and PARKER, BAUS303, 32 Pac. 90, 34 Am. St. Rep. 858. The MAN, and MAIN, JJ., concur.

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10.

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(89 Wash. 467)

Neill & Burgunder, of Colfas, for appel. HARGRAVE et ux, v. CITY OF COLFAX. / lants. Chas. F. Voorhees, of Colfax, for it (No. 13142.)

spondent. (Supreme Court of Washington. Feb. 2, 1916.) 1. ACCORD AND SATISFACTION 25-SUFFI

HOLCOMB, J. Appellants' action agains CIENCY OF PLEADING-STATUTE—"ACCORD.”. respondent was to recover damages by way

In view of Rem. & Bal. Code, § 258, of diminished market value resulting fros abolishing common-law distinctions as to the

the regrade of streets on which their 000form of actions or pleadings, and providing that a complaint shall consist of a plain and concise munity property abuts. The streets being statement of facts constituting the cause of ac | improved were Main and James streets, alattion and a demand for the relief claimed, and ting on appellants' property on two sides section 264, providing that the answer shall con

The original grade on both streets was es tain a general or specific denial of each material allegation of the complaint controverted by de

tablished by ordinance in 1891, and the fendant, and a statement of any new matter streets were afterwards physically graded to constituting a defense or counterclaim, in ordi

the established grade. Appellants' property nary, concise language, without repetition, an affirmative answer by a city in an abutting

was thereafter improved and adjusted with owner's action for damages from the regrading reference to the grade, and, among other inof a street that the building of a retaining wall

provements, a stone wall was built around by the city made everything satisfactory to the plaintiffs, in the absence of a motion to make

the property on Main and James streets more definite or a demurrer thereto, was good Appellant R. G. Hargrave signed the peti as a plea of accord and satisfaction; an "action to the city council to regrade and imcord" being a satisfaction agreed upon by the

prove Main and James streets adjacent to parties injuring and the parties injured. [Ed. Note.-For other cases, see Accord and

the property of appellants. In April, 1912, Satisfaction, Cent. Dig. $$ 151, 153–160; Dec. respondent commenced to improve the streets Dig. Om 25.

by regrading and paving. The regrade cut For other definitions, see Words and Phrases, each street at the corner of appellants prop First and Second Series, Accord.).

erty about six feet below the old established 2. ACCORD AND SATISFACTION 27 – Evi. I grade. When the graders began to grade DENCE-QUESTION FOR JURY.

James street, they commenced to cut at tte Evidence in such action held to make it a question for the jury as to whether the agree

| base of appellants' retaining wall without ment to build or the building of such wall was leaving a shoulder. Appellants called the accepted in satisfaction.

attention of the street committee of the city [Ed. Note.- For other cases, see Accord and

| council to the fact that, if the grade was Satisfaction, Cent. Dig. $8 31, 59, 83, 97, 110, 135, 150; Dec. Dig. Om 27.)

made in that way, the retaining wall di

James street would fall and appellants' prop 3. HUSBAND AND WIFE 270_AGREEMENT AS TO REGRADE OF STREET-SETTLEMENT OF

erty slide onto the street. The street cúm. DAMAGES-SUFFICIENCY OF EVIDENCE. mittee of the council went to the property,

Evidence in an action by a husband and and, in company with R. G. Hargrave, piese wife, owners of abutting property, for damagesed the premises, and decided to build a aus from the regrading of a street, held, in view of Rem. & Bał. Code, $ 5918, declaring that the crete wall along James street about four husband shall have the management of the com- feet out from the property line, and fill in munity realty, sufficient to sustain a finding behind it so as to hold the old retaining wall that an agreement to accept the city's construction of a wall as a protection to their property 11P

in place and prevent it from falling. This was made for and with both the husband and wife.) wall was afterwards built by the city at its

[Ed. Note.--For other cases, see Husband and expense. In its answer respondent alleges Wife, Cent. Dig. 88 968-971, 973-984, 988; Dec. that, by reason of R. G. Hargrave baring Dig. Om 270.)

signed the petition asking for the street im 4. ACCORD AND SATISFACTION Om 26-BUBDEN provements referred to, and the fact that OF PROOF.

during all the time the improvement was bee In such action the burden was upon the city to support its affirmative plea of an ac

ing made appellants resided on the propery cord and satisfaction,

and made no demand for damages prior to [Ed. Note.-For other cases, see Accord and the bringing of the suit, they are estopped to Satisfaction, Cent. Dig. 88 162–165; Dec. Dig.

claim any damages whatsoever by reason of On 26.]

the matters of which they complain in their 5. TRIAL 260—-REQUESTED INSTRUCTIONSGIVEN INSTRUCTIONS.

| 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 instruction ing of the concrete wall hereinbefore referred given upon the issue was not error.

to by the respondent, at its expense, would [Ed. Note.--For other cases, see Trial, Cent. Dig. 88 651-659; Dec. Dig. Om 260.]

| make everything perfectly satisfactory to an

pellants; and it was further alleged that in Department 2. Appeal from Superior all the matters and at all the times referred Court, Whitman County; R. L. McCroskey, to by respondent R. G. Hargrave acted for Judge.

| himself and for and on behalf of his wife Action by R. G. Hargrave and wife against and coplaintiff, Frances P. Hargrave. Ap the City of Colfax. Judgment for defendant, pellants unsuccessfully moved to strike from and plaintiffs appeal. Affirmed.

| the aflirmative answer the allegations that

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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 improve- respondent's pleading it is nowhere alleged ment of the street, that he at all times knew that the building of the wall was to be in during the making of the improvement of satisfaction of all damages. It is true that

the plans therefor, and never at any time the affirmative answer did not use the spe2.7. made any objections, and that he expressed cific words “accord and satisfaction," and

himself satisfied with a proposed 10 per cent. did not specifically say that the things agreed grade of the streets adjacent to their prop- upon were to be in full satisfaction of all erty. Upon, the denial of these motions ap- damages. It seems to have used language pellants replied, denying certain allegations, conforming to the form of the understanding and admitting the allegation of respondent's or agreement, which, as shown by the record answer that there was an understanding and of the testimony on behalf of respondent, agreement between the parties that respond- was that the building of the concrete wall ent would build at its own expense the con- and other minor matters by the respondent crete wall referred to and in the manner "would make everything perfectly satisfacmentioned, but denied that it was then un- i tory to appellants." There is no part derstood and agreed that everything would | magic in words. Our Code abolishes all disbe perfectly satisfactory to them. They fur tinctions formerly existing at common law ther affirmatively alleged that there was no as to the form of actions or pleadings. It is agreement and understanding between ap- now provided simply that a complaint must pellants, or either of them, and respondent,

consist of “a plain and concise statement of that the erection of the wall would compen facts, constituting the cause of action, withsate them or be in satisfaction for any of

out unnecessary repetition," and "a demand the damages claimed in the complaint. At for the relief which plaintiff claims" (Rem. the trial, when the defense rested, upon mo- & Bal. Code, $ 258); that an answer must tion of appellants to strike from the record contain "a general or specific denial of each and to instruct the jury to disregard any material allegation of the complaint controand all testimony offered by respondent in verted by the defendant," and "a statement relation to any affirmative matters alleged of any new matter constituting a defense or in its answer, except in regard to values and counterclaim, in ordinary and concise landamages, the court allowed all of appellants' guage without repetition" (Rem. & Bal. Code, motion, except as to evidence pertaining to $ 264). Accordingly, under the Code, the the understanding or agreement in connec

pleading is judged by the facts pleaded, and tion with the building of the wall. Upon

not by any technical rule obtaining under the this issue the case was submitted to the jury,

common law. The allegations of the answer and the jury returned a general verdict in

might possibly have been more specific or favor of respondent, and answered in favor

more technical, but appellants did not move 26 of respondent the following special interrog.

to make them more definite and certain, and atory:

did not demur to the answer. No motion of "Did plaintiffs and defendant have an under

any kind was made against that particular pitt

standing or agreement at or about the time de-
fendant agreed to build the concrete wall men-

affirmative allegation of the answer upon tioned in the pleadings whereby or in pursuance which the case was submitted to the jury,

of which all damages to plaintiffs' property except the motion, at the conclusion of renon caused by the regrading of Main and James streets should be fully settled ?".

spondent's evidence, that all testimony of

fered by defendant in relation to any afTo this interrogatory the jury answered: “Yes."

firmative 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 concern- It stated the facts as the Code requir

he 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

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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 for and with both appellants. Bowers alleged.

Good, 52 Wash. 384, 100 Pac. 818; Pearl [2] It is a question for the jury whether | Oyster Co. v. S. & M. Ry. Co., 53 Wash 101, the agreement or the performance was ac 101 Pac. 503. cepted in satisfaction. Bahrenburg v. Fruit 3. The court instructed the jury, limiting Co., 128 Mo. App. 526, 107 S. W. 440.

their consideration of the matters in Toled [3] 2. Appellants contend that the wife in the case to the questions: (1) Was Iber never agreed to the building of the wall as a contract, understanding, or agreement te a settlement of all the questions that might tween the plaintiffs and the defendant mais arise between them, that she never was a or had at or about the time agreed to bard party to any contract or agreement at all, the concrete wall mentioned in the evidence, and that therefore she was not bound by any whereby or in pursuance of which all danas action taken by her husband involving the es occasioned to plaintiffs were settled by taking or damaging of their community pron- reason of the city erecting the wall? And erty. There is ample evidence to the effect (2) if there was no such understanding a that R. G. Hargrave made the agreement al agreement, then what damages, if any, d33 leged 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.

[4] These instructions were followed by The appellants joined in their pleadings others appropriate to those issues, and the and joined in the reply to the respondent's jury were instructed that the burden of prof affirmative answer. In the reply they admit- was upon respondent to support its affirmated that there was a contract between them tive allegation. These instructions were esand respondent, but denied that it was as al- | cepted to by appellants, and an instruction leged by respondent. The statute (Rem. & tendered and refused by the court is also Bal. Code, $ 5918) provides that:

made the basis of a claim of error. Toder "The husband has the management and con- the issues in the case developed, however, we trol of the community real property, but he think the instructions given were proper, and shall not sell, convey, or incumber the community real estate, unless the wife join with

the refusal of the instruction tendered by him in executing the deed or other instrument appellants was not prejudicial. of conveyance by which the real estate is sold, L (5] The requested instruction was, in ef. conveyed, or incumbered."

fect, the same as the instructions given by The case of Parke v. Seattle, 8 Wash. 78, the court upon the issues submitted to the 35 Pac. 594, is cited and relied upon by ap- jury, except that it contained the further pellants to sustain their contention. In that direction that if the iury found by t case it was held that, in an action for dam- ponderance of the evidence that R. G. Har ages for the wrongful taking of community grave did make such agreement, it would nreal property, the wife was a necessary party be binding on the plaintiffs unless ther fur. plaintiff with the husband; and it was stat-ther found by a preponderance of the eried that the husband alone could not authorize

dence that the plaintiff Frances P. Hargrate such taking or damaging of the community also made such agreement or authoriz real estate in the first instance. The case is husband to make such agreement. of little importance here, however, for the

Bearing in mind that a part of the affirreason that, in this case, the husband and ative allegation upon this issue of respond wife are joined in the action, and they ad. ent's answer was that R. G. Hargrare was si mit and allege that a contract was made. all times and in all the things referred to Furthermore, there is evidence in the record

acting for and on behalf of himself and his tending to show that the wife first discovered

wife, and that there was some evidence tenithe nature of the grade or cut that was being ing to support that allegation, and that there made adjacent to their property, that she tel. was no testimony to the contrary on the part ephoned her husband, and that her husband

of appellants, and observing further that the came to see the work and called the street court inst

court instructed the jury that the burden of committee of the city council to act in the

| proof was upon the defendant to prove by a matter. The wife did not testify. Whatever

preponderance of evidence the material alle agreement was made was made at their resi

gations of the affirmative matter set up in its dence. They resided upon the premises all

answer which had not been admitted by ap the time. The appellants certainly cannot be

pellants in their reply or during the progress heard to say that the community could au

of the trial, we are of the opinion that the thorize the husband to act as the agent to court committed no error in giving and me make one contract in regard to the matter

fusing instructions. then in controversy, for the benefit of ap

We find no error. pellants, and which was acted upon by re

| Judgment aflirmed. spondent, but not another. The wife knowingly permitted the husband to deal with the MORRIS, C. J., and BAUSMAN, MAIN,

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