Special Appearance--Preserving Affidavits on Appeal
"[1] APPEAL AND ERROR - AFFIDAVITS - INCLUSION IN STATEMENT OF
FACTS - NECESSITY. Affidavits supporting or opposing motions must be
brought up in the statement of facts; and they cannot be considered
upon appeal where they appear only in the transcript.
[2] APPEARANCE - PROCEEDINGS CONSTITUTING - GENERAL APPEARANCE AFTER
SPECIAL APPEARANCE. An answer on the merits by a defendant foreign
corporation in an action on contract was a general appearance, where
a prior special appearance to quash the service of the summons and
complaint was not preserved; in view of RCW 4.28.210, which provides
that "A defendant appears . . . when he answers . . ." and
that "Every appearance shall be deemed a general appearance, unless
the defendant . . . states that the same is a special appearance."
[3] APPEAL AND ERROR - BRIEFS - SETTING OUT FINDINGS. Where findings
of fact are not set out in the appellant's brief as required by Rule
on Appeal 43, they are verities.
Appeal from a judgment of the superior court for Pierce county, No.
128049, Hale, J., entered November 19, 1956, upon findings in favor
of the plaintiffs, in an action on contract, tried to the court.
Affirmed.
Dean W. Mullin (Thomas K. Hudson and Alice Loveland, of counsel),
for appellant.
Paul Hoffman, Jr., and Robert R. Briggs, for respondents.
PER CURIAM. -
Respondents, who were plaintiffs below, sued the appellant Colorado
corporation, defendant below, upon matters arising out of a written
contract for the purchase of machines. By special appearance,
appellant moved to quash the service of the summons and complaint
upon it because appellant, a Colorado corporation, had not qualified
to do business in Washington and had never done business here. The
motion was denied, and thereafter, without preserving its special
appearance, appellant answered on the merits. After trial the court
found for the respondents
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«1» Reported in 316 P. (2d) 465.
[2] See 93 A. L. R. 1302; 3 Am. Jur. 807.
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{51 Wn.2d 154, 155}
and entered judgment against appellant in excess of eight thousand
dollars.
The first error assigned is the overruling of the appellant's motion
to quash the service of the summons and complaint. This cannot be
considered for two reasons:
(1) The factual showing upon which the motion was heard and decided
is neither identified in the motion or order denying it, nor brought
up in the statement of facts, although there is one affidavit in the
transcript.
[1] By a long line of cases over a period of more than sixty years,
it is settled law that affidavits supporting or opposing motions
appearing only in the transcript cannot be considered upon appeal.
The affidavits or other factual showing upon which such motions are
determined must be brought up in the statement of facts and cannot
be otherwise considered. Whitehead v. Satran, 37 Wn. (2d) 724, 225
P. (2d) 888; Sellers v. Pacific Wrecking & Salvage Co., 34 Wash.
111, 74 Pac. 1056; Griggs v. MacLean, 33 Wash. 244, 74 Pac. 360;
Norfor v. Busby, 19 Wash. 450, 53 Pac. 715; Jacobson v. Lunn, 16
Wash. 487, 48 Pac. 237; Heffner v. Board of County Com'rs of
Snohomish County, 16 Wash. 273, 47 Pac. 430. The rule is otherwise
if the affidavits or other evidentiary materials are identified in
the judgment or order. State v. Fackrell, 44 Wn. (2d) 874, 271 P.
(2d) 679, in which many of the other cases are referred to; State ex
rel. Potter v. Maybury, 161 Wash. 142, 296 Pac. 566.
[2] (2) After the motion to quash was overruled, the appellant
answered on the merits without preserving its special appearance,
thereby making its appearance general under RCW 4.28.210.
"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; but when a defendant has
not appeared, service of notice or papers in the ordinary
proceedings in an action need not be made upon him. Every such
appearance made in an action shall be deemed a general appearance,
unless the defendant in making the same states that the same is a
special appearance."
{51 Wn.2d 154, 156}
Kubey v. Travelers' Protective Association, 109 Wash. 453, 187 Pac.
335; Steenstrup v. Toledo Foundry & Machine Co., 66 Wash. 101, 119
Pac. 16, Annotated Cases, 1913C 427; Bellingham v. Linck, 53 Wash.
208, 101 Pac. 843; Bain v. Thoms, 44 Wash. 382, 87 Pac. 504; Gaffner
v. Johnson, 39 Wash. 437, 81 Pac. 859; Hodges v. Price, 38 Wash. 1,
80 Pac. 202; Morris v. Healy Lbr. Co., 33 Wash. 451, 74 Pac. 662;
Walters v. Field, 29 Wash. 558, 70 Pac. 66.
[3] The remaining assignments of error involve factual disputes. One
assignment is that the court erred in its finding on damage but none
of the findings of fact are set out in the appellant's brief as
required by Rule on Appeal 43, 34A Wn. (2d) 47, as amended,
effective January 2, 1953.
"In appeals from all actions at law or in equity tried to the court
without a jury, the findings of fact made by the court will be
accepted as the established facts in the case unless error is
assigned thereto. No error assigned to any finding or findings of
fact made or refused will be considered unless so much of the
finding or findings as is claimed to be erroneous shall be set out
verbatim in the brief."
The findings are verities. Howard v. Barrington, 50 Wn. (2d) 225,
310 P. (2d) 537; Judd v. Bernard, 49 Wn. (2d) 619, 304 P. (2d) 1046;
Pettaway v. Commercial Automotive Service, 49 Wn. (2d) 650, 306 P.
(2d) 219; McKennon v. Anderson, 49 Wn. (2d) 55, 298 P. (2d) 492;
Kaul v. Chehalis, 45 Wn. (2d) 616, 277 P. (2d) 352.
The facts found are amply sufficient to support the judgment, and no
useful purpose would be served by restating them.
The judgment is affirmed.
Zarelli v. Superior Distributing Corp., 51 Wn.2d 154, 316 P.2d 465
(1957).
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Source: Municipal Research & Services Center of Washington;
<
http://www.mrsc.org >
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Those of us interested in challenging jurisdiction by way of an
initial special appearance definitely need to research AND post more
black-letter law on the subject matter in order to improve our
success/survival rate in the courts and on the street. I agree, if
the initial discussion with LEO does not result in an instant
dismissal (no citation, no custodial arrest) then one must avoid the
pitfalls "Just-Ice" by surrendering to the jurisdiction imposed by
Mr. Agent W. Gun and prior to a personalized invitation to meet the
prosecutor, Mr. E.Z. Sleazy, and his bed-fellow, Judge U. R. Screwed.
Recently i have key-worded "special appearance" in Washington case-
law and am busy sorting through the results (188 hits, most seem
prior to 1960) . Unfortuantely, as we all realize, with case
opinion law there is not much record of a pure procedure (i.e., if
the issue is properly presented then 'the record is basically lost'
due to a dismissal of the case prior to ANY appeal). But then,
history plainly DEMONstrates that the duty of retaining individual
Liberty isn't a simple task.
It's anological to Hansel & Gretel getting lost because the birds
ate up the crumbs of bread used to find the right path back home--
Or, it is anological to Dorothy and her unconventional friends
getting disoriented while frolicking through the poppy fields.
Major difference is that the real world is a sophisticated "War-
Zone, where one is outnumbered by the opposing team that is known to
be sadistic, the rules of engagement are often distorted, the
opposition has unlimited resources, and 'they' "play for keeps". It
certainly makes for a cause for celebration when one can walk away
basically unscathed.