
    [No. 15715.
    Department Two.
    March 17, 1920.]
    The State of Washington, on the Relation of H. A. Teeter, Plaintiff, v. The Superior Court for Chelan County, Defendant.
    
    Actions (31)—Commencement—Service oe Summons Without Filing Complaint—Statutes. Failure to serve a summons within 90 days after filing the complaint, as provided by Rem. Code, § 321, does not lose the cause of action; and service of a summons thereafter is the commencement of a hew action dating from the day of service.
    Limitation oe Actions (87)—Pleading Statute as Defense— Necessity. The statute of limitations is a defense that is waived by default or failure to interpose it.
    Prohibition (5)—Remedy by Appeal—Proceeding With Trial. Prohibition does not lie to control the action of the trial court in ruling as to the bar of the statute of limitations, where it had jurisdiction of the subject-matter of the action and the ruling would merely be error occurring in the progress of the cause.
    Application filed in the supreme court January 9, 1920, for a writ of prohibition to prevent the superior court for Chelan county, Grimshaw, J., from proceed-
    ing with an action on contract.
    Denied.
    
      Ludington & Shiner, for relator.
    
      Hughes & Adams and W. O. Parr, for defendant.
    
      
      Reported in 188 Pac. 391.
    
   Fullerton, J.

On December 31,1918, the Columbia Valley Bank, as trustee, filed a complaint in the superior court of Chelan county in which it sought to recover against the relator upon two promissory notes. No service of summons was had upon him within ninety days after the filing of the complaint, nor until June 23, 1919, when service was made by leaving a copy of the summons and complaint at the house of his usual abode with a person of suitable age and discretion then resident therein, to wit, his wife. After the service, the relator appeared specially in the action and moved to qnash the same, which motion the trial court denied. Prior to the time the relator made any further appearance in the cause, a notice of trial was served upon him, whereupon he made the application now before us, asking a writ prohibiting the trial court from further proceeding in the cause.

The application for the writ is based on the contentions, first, that the court is without jurisdiction of the subject-matter of the action; and second, that it is without jurisdiction of the person of the relator.

To an understanding of the first of these contentions, it is necessary to notice the statutes relating to the commencement of actions. The statute provides two methods of commencing an action; first, by the filing of a complaint and the service of summons within ninety days thereafter; and second, by the service of summons on the defendant. Rem. Code, § 220. Where the summons is served without first filing the complaint, the complaint may be filed on or before the day when the case is called for trial, or the day when an application is made to the court for an order therein. Id., § 321. The statute also provides that an action is not deemed commenced so as to toll the statute of limitations until the complaint is filed. Id., § 167. Blalock v. Condon, 51 Wash. 604, 99 Pac. 733.

In McPhee v. Nida, 60 Wash. 619, 111 Pac. 1049, reviewing these statutes, we held that a suitor did not lose his cause of action by failing to serve a summons within ninety days after filing his complaint, but that he might serve his summons after that time, in which case the service would be deemed the commencement of a new cause of action dating from the time of the service; further holding that no rights could be claimed because of tbe original filing of tbe complaint. In tbe application for tbe writ in tbe proceeding before us, it appears that tbe statute of limitations ran against the' notes sued upon between the time tbe complaint was filed in tbe court below and tbe time the summons on tbe complaint was actually served on tbe relator, and it is on this fact that tbe conclusion is rested that tbe court is without jurisdiction to entertain tbe action. But it is at once manifest that such a conclusion is unfounded. Tbe statute of limitations is a defense, not a bar to an action. It is a defense, moreover, that may be waived, and a defendant does waive it when be defaults, or when be appears and fails to interpose it as a defense. Rem. Code, §§ 259, 260, 261. Bay View Brewing Co. v. Grubb, 31 Wash. 34, 71 Pac. 553. Hence, jurisdiction to entertain an action is not affected by tbe fact that it may appear upon tbe face of tbe complaint that tbe claim sued upon is subject to tbe bar of tbe statute of limitations, and this being-true, it cannot be said that tbe court in entertaining such an action is acting without jurisdiction.

We have not overlooked tbe relator’s contention that both tbe plaintiff and tbe trial court are proceeding in such a manner as to preclude “tbe possible argument that they consider the alleged service of June 25, 1919, as a new and separate proceeding, and therefore without tbe proviso of tbe statute. ’ ’■ But as to tbe actions or claims of tbe party plaintiff in tbe action, tbe relator should not be concerned. In spite of what it may do or claim, tbe relator has tbe right to appear and interpose any defense to tbe action be may have. As to tbe trial court, it does not appear that it has as yet been called upon to rule upon tbe question. But if it bad done so, and bad held that tbe action was commenced at tbe time the complaint was filed and was thus within the statute of limitations, this court would not, for that reason, be authorized to issue a writ of 'prohibition against it. The court has jurisdiction of the subject-matter of the action, and any error it commits in that respect is error in the exercise of jurisdiction, and subject to correction by an appeal, and hot by a writ of prohibition.

The second contention is also without merit. It is founded on the contention that the court held there was a sufficient service of summons on the relator when there was in fact no such sufficient service. But if the contention be well taken, it furnishes no cause for the issuance by this court of a writ of prohibition.' It is but an error occurring in the progress of the cause which may be, and can only be, reviewed by an appeal from the final judgment. State ex rel. Vincent v. Benson, 21 Wash. 571, 58 Pac. 1066. The application is denied.

Holcomb, C. J., Mount, Tolman, and Bridges, JJ., concur.  