State ex rel. Timm v. Trounce

The opinion of the court was delivered by Scott, J. The respondent moves to strike portions of the transcript for certain reasons specified, but as the motion presents no points that have not been heretofore decided by the court, it will be denied without setting them forth. One Peter Timm recovered a judgment against D. Stegman, S. Loeb and John Frazier, in the superior court of Pierce county, and proceedings were instituted supplementary to execution, and this proceeding is founded therein. The appellant was not a party to said suit, but was summoned to appear under §§ 524 and 525, Code Proc., and failing to appear, he was adjudged guilty of a contempt of court. Several questions are raised upon this appeal, but as the determination of one of them disposes of the proceeding, the others will not be discussed. The appellant was served with process in King county, which commanded him to appear before the superior court [805] of Pierce county at a time and place specified. At the time of the hearing the appellant appeared by an attorney and objected to the proceedings on the ground that the court had no jurisdiction in the premises, for the reason that the appellant resided more than twenty miles from the place where he was cited to appear as aforesaid. This objection was overruled. In such a matter as this the appellant is summoned rather as a witness than as a party to a proceeding. Such proceedings are authorized to be taken before a court or judge, and are special in their nature. No presumption can attach in favor of the jurisdiction of the court. There was no proof submitted to the court in any way that the defendant resided within twenty miles of the place at which he was commanded to appear and testify. Section 524 aforesaid authorized the judge to make an order requiring such person to appear before him, or a referee appointed by him. Section 525 declares that a witness may be compelled to appear and testify before the judge or referee upon any proceedings under this chapter as upon the trial of an issue of fact. Section 1650 declares that no person shall be obliged to attend as a witness before any court of record, judge, referee, etc., in any civil action or proceeding out of the county in which he resides, unless his residence be within twenty miles of such court, judge, etc. In this case, before the appellant could have been adjudged guilty of a contempt of court, it should first have appeared that he resided within the jurisdiction of the court. Otherwise a party might be summoned and compelled to appear from a remote part of the state, to make his objections to a proceeding in which he had no interest whatever, except to protect himself from paying money or delivering property upon an invalid order. We do not think that such can be the intent of the law, and before a party can be punished for a failure to obey [806] the summons, it must appear that the court had jurisdiction over him, and a residence within twenty miles, as aforesaid, is one of the essential requirements. It follows that the superior court had no jurisdiction to make an order adjudging the appellant guilty of a contempt of court, nor to render any judgment against him whatever in said proceedings, and the same are in each and every part reversed and set aside. Dunbar, C. J., and Hoyt, Anders and Stides, JJ., concur.