
    [No. 9010.
    Department One.
    November 21, 1910.]
    A. G. Worthington et al., Respondents, v. F. A. La Violette, Appellant.
    
    Process — Summons for Publication — Sufficiency. A summons by publication requiring the defendant to appear within sixty days after the “service” of the summons is not in accordance with the statute, and is insufficient to confer jurisdiction to enter a judgment of default.
    Same — Judgment—Service of Process — Evidence.- In an actiqn to set aside a default judgment in a tax foreclosure, a finding that there was no summons other than a defective publication shown by the files is warranted where the defendants in the foreclosure were not personally served, the files show no other service than the defective publication, and there was no affirmative showing that any other service was made.
    
      
      Taxation — Pleading and Proof — Amendments. Where, in an action to set aside a tax title, the defendant in two amended answers pleaded title and possession in himself, it is not an abuse of discretion, upon sustaining an objection to his deposition showing that he was a married man, to refuse leave to amend the answer to show that the title was in himself and wife as community property.
    Appeal from a judgment of the superior court for King" county, Tallman, J., entered March 16, 1910, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to vacate a tax deed and to quiet title.
    Affirmed.
    
      J. C. Cross (A. Emerson Cross, of counsel), for appellant.
    
      J. I). Bauer (Foster <§■ Worthington, of counsel), for respondents.
    
      
       Reported in 111 Pac. 784.
    
   Parker, J.

This is an action to set aside a tax deed and' recover the property therein described. The plaintiffs allege in their complaint their ownership and facts showing want of jurisdiction in the court to render the judgment upon which the tax deed is based. The defendant filed an answer,, an amended answer, and a second amended answer, in all of' which he denies the allegations of the complaint relating to want of jurisdiction to render the judgment upon which the tax deed is based, alleges in substance that he is in possession of and claims title to the property under the tax deed, and pleads no other right or title to the property, either in himself or any other person. A trial before the court resulted in a judgment in favor of the plaintiffs. The defendant has appealed.

The record in the tax foreclosure case, introduced in evidence upon the trial, fails to show the issuance or service of any summons in that case, other than one that was served by publication only, containing no directions for the defendant’s appearance except the following:

“You and each of you are hereby directed and summoned to appear within 60 days after the service of this notice and summons upon you, exclusive of the date of service in the above entitled court, and defend the action or pay the amount due together with the costs.”

That record also contains the usual affidavit of nonresidence of the defendant. There was evidence tending to show that the owners of the property, at the time of the foreclosure, were never personally served with this summons or other process in that case. The appellant offered no evidence of the issuance or service of any other summons. It is clear that the published summons was void and gave the court no jurisdiction to decree the foreclosure of the taxes, since it was not such a summons as the law requires; and it is equally clear that respondents’ evidence made a prima facie showing that there was no other summons issued or served in the case. Pillsbury v. Beresford, 58 Wash. 656, 109 Pac. 193; Gould v. White, 54 Wash. 394, 103 Pac. 460; Thompson v. Robbins, 32 Wash. 149, 72 Pac. 1043. And there being no affirmative proof of the issuance or service of any other summons than this void one, the trial court was fully warranted in finding, as it did in substance, that there was no •other summons upon which the judgment and tax deed could rest.

At the trial, after respondents had rested, there was read in behalf of appellant his deposition, wherein among other things, he testified that he was married at the time he received the tax deed. This testimony appears to have gone into the deposition over the objections of respondents’ counsel. Just .what objections were made to it when read to the court at the trial is not clear from the record. However, appellant’s counsel immediately moved the court for leave to amend his second amended answer, by alleging that the property was the community property of appellant and his wife. This was objected to by counsel for respondents. The court sustained the objection and denied the motion. Learned counsel for appellant contend that the court erred in denying his motion to amend, and insist that we should now treat the cause as if this proposed amendment was actually made, in view of the manner in which this marriage relation appeared in the case. They seem to assume that this fact appeared in the evidence without objection from respondents, since the statement of facts does not clearly show that it was objected to at the moment it was read to the court upon the trial. It is clear, however, that the motion to amend was immediately made and objected to. We think the objection in the deposition, and the objection to the motion to amend immediately following the reading of the testimony, shows clearly that the respondents were not consenting to the introduction of evidence tending to show title in any other’person than appellant, which was clearly the purpose of the testimony and proposed amendment. In appellant’s second amended answer, as well as his two previous answers, he pleaded possession and title in himself alone. His proof could not go beyond that, over respondents’ obj ections, in the absence of a timely amendment to his answer raising such an issue. Rem. & Bal. Code, § 794; Garvey v. Garvey, 52 Wash. 516, 101 Pac. 45; Murray v. Briggs, 29 Wash. 245, 69 Pac. 765; Allen v. Higgins, 9 Wash. 446, 37 Pac. 671, 43 Am. St. 847; Raymond v. Morrison, 9 Wash. 156, 37 Pac. 318. And it is plain that the court did not abuse its discretion in denying appellant’s motion for leave to amend at that late day. Harsin v. Oman, 59 Wash. 693, 110 Pac. 621; International Development Co. v. Clemans, 59 Wash. 398, 109 Pac. 1034.

The judgment is affirmed.

Rudkin, C. J., Mount, Gose, and Fuldehton, JJ., concur.  