Whitman County v. United States Fidelity & Guaranty Co. , 49 Wash. 150 ( 1908 )

Per Curiam.

In November, 1901, one Charles G. Raby, who was then county auditor of Whitman county, embezzled of the funds of that county some $1,753. In November, 1904), the county instituted this action in the superior court of Whitman county against Raby and the respondent, who was the surety on Raby’s official bond, to recover the amount so embezzled. At the time of commencing the action, the surety company did not have an office for the transaction of its business in Whitman county, nor did it have an officer, agent or person in that county on-whom service of process could be made, its statutory agent and principal place of business being then in King county, at which place service of summons and complaint was made upon it. The record does not show Raby’s place of residence further than it appears that personal service of summons and complaint was made upon him in Walla Walla county. Raby made default. The surety company, in addition to an answer on the merits, set up want of jurisdiction in the court. A demurrer to the plea of want of jurisdiction was overruled, and on the refusal of the county to plead further, judgment of dismissal against it was entered. The county appeals.

Had the surety company been sued alone-it is clear, on the authority of the cases of McMaster v. Advance Thresher Co., 10 Wash. 147, 38 Pac. 670, and Hammel v. Fidelity Mutual Aid Ass’n, 42 Wash. 448, 85 Pac. 35, that no action would lie against it. It is thought, however, that, since Raby was a proper party to the action and submitted to the jurisdiction of the court, jurisdiction attached as against the surety company also. But it seems to us that this does not follow. Had it been made to appear that Whitman county was the county of Raby’s residence, and that as a consequence the action was properly brought there as against him, a different question would be presented. But being brought in the wrong county as against both of the defendants, neither defendant can confer jurisdiction on the court as against the other by consenting to have the action tried in that county. In this respect the rights of the defendants are equal, and inasmuch as jurisdiction did not exist independently of Raby’s consent, it was not conferred by that consent.

The judgment appealed from is affirmed.