Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

sale, and did not pay to said sheriff any part, the injunction obtained by the plaintiff in the of the sum bid at said sale, but made its re- injunction suit? There is some conflict of ceipt to the sheriff therefor without any mon- authority on this question, but we think the ey having actually passed; that thereafter, great weight of authority, and the better reaon the 28th day of November, 1893, a trial soning, support the contention of the respondof said cause was had, and on said day a ent. The appellants quote 2 High, Inj. 8 judgment was rendered thereon in favor of 1635, to the effect that sureties are liable White, the then defendant, and against the for such damages only as result from the inthen plaintiff, dismissing said action and dis- junction itself, and not for damages caused solving said injunction, and for costs and by the unlawful act of the person obtaining disbursements, which judgment has ever since the injunction, during its pendency. While remained in full force and effect, unsatisfied this is true, as a general proposition, we and unappealed from. Alleges the amount think the damages here did result directly of the debt lost by reason of the premises; from the injunction itself. Certain it is that that respondent had a lien on said stock of the effect was direct enough to take from the goods under said mortgage, and that, prior to possession, control, and reach of the respondthe commencement of this action, plaintiff ent the property upon which he had a lien, had demanded from the defendants the and which, if the statements of the complaint amount of his damages, and that defendants are true, would have been sufficient to have refused to pay the same, or any sum what- paid his claim, and which, according to the ever; that they still refuse, and that the sum allegation of the complaint, would have been is still due, owing, and unpaid; demanding sold on the 2d day of October, and the claim judgment for $1,002.85, with interest, and would have been satisfied. While it is true $100 attorney's fee. A demurrer was inter- that sureties on injunction bonds-or, for that posed to this complaint, which was overruled. matter, on any other bonds-will not be held The answer admitted the execution of the beyond the strict terms of their contract, it bond, but alleged that the condition upon seems to us that, under the strict terms of which the bondsmen agreed to become liable their contract, they are liable for the dam. had not been broken in this, to wit: That the ages which arose in this case. The promising court had never fully decided that such plain- part of the bond is as follows: “Now, theretiff was not entitled to the injunction for fore, we, the undersigned, residents of the which said bond was given. As to all the county of Lincoln, state of Washington, in other allegations, matters, and things con- consideration of the premises and the issutained in the complaint, defendants, answer. ance of said injunction, do promise to the ing, said they had not sufficient knowledge or effect that in case said injunction shall be is. information to form a belief, and therefore sued said plaintiff will pay to the said pardenied them. They affirmatively set up the ties enjoined such damages, not exceeding the mortgage of the North Star Boot & Shoe sum of $2,000, as such parties may sustain by Company; alleged the fact that they were reason of said injunction, if the court finally proceeding to foreclose their mortgage, and decides that the said plaintiff was not enhad advertised the sale of the goods on the titled thereto." So that there is no question 3d day of October, when the plaintiff, pre- of rigid or liberal rule, so far as the rights of tending to hold a mortgage upon the same the bondsmen are concerned, but it is a pure property, undertook the foreclosure, under question of fact, as to whether the damages the provisions of the statute, while the said were sustained by the respondent by reason property was in the hands of the sheriff, as of the injunction. It seems to us that if we the agent of the North Star Boot & Shoe should hold that the damages in this case Company; that the respondent herein, White, were too remote, or that the defendant in the has not now, and never has bad, any legal injunction proceeding should be relegated to or valid claim against the goods or property the sheriff, on his official bond, for redress, of said A. F. Rosbach; that the mortgage injunction bonds would be found entirely inwas a pretense, and given for the purpose of adequate and altogether unnecessary; for covering up and keeping from the reach of certainly, by reason of the respondent being creditors the property described in the mort- forbidden to pursue the remedy which he gage. The answer and complaint are both plainly had, under the law, to foreclose his long, but we think we have substantially mortgage and sell the property to satisfy his stated the allegations therein. A trial was debt, his lien was destroyed, and the properhad, and a general and special verdict found. ty was taken from the jurisdiction, and was Motion for a new trial was overruled, and lost to him. And it seems, in reason, it judgment entered. To all of which appel- would make no difference how the loss OClants excepted, and bring the case here on ap- curred, if this loss could be traced directly to peal.

the issuance of the injunction; and under It seems to us the principal question for the allegations of the complaint the damages discussion is, did the court err in overruling would be the amount of the debt, the collecthe general demurrer to the amended com- tion of which was prevented by the injuncplaint, or were the damages incurred by the tion, plaintiff the direct or approximate result of Respondent cites, in support of his conten

[ocr errors]

tion, Dougherty v. Dore, 63 Cal. 170, and we to his own use; and the court held that the think this case is squarely in point. There measure of damages which the defendants in the plaintiff was a street contractor, who had the suit were entitled to recover in an action a contract for doing the work which he was upon the injunction bond was prima facie temporarily enjoined by the injunction from the value of the property in question. Judge prosecuting. The testimony showed that by Denio, in rendering the opinion in this case, reason of said injunction, and service there- says: “This seems to me a very lain case. of, and delay caused thereby, a large amount

The plaintiff's argument is that the of material, placed in a certain part of the loss was not occasioned by the injunction, street by plaintiff, was left without protec- but by the tortious act of the plaintiff and tion, and was washed away by the action of his assistant, unconnected with that process. the water, and that the plaintiff had to, and This is too narrow a view of the question. If did, replace it at a heavy cost. It was urged it had been carried off and converted by a in that case that the injunction was not the stranger while the owners were prohibited cause either approximate or remote, of the from doing anything to protect it, the perdamage; but it was held by the court below sons who restrained them ought to make that it was sufficiently approximate, and such recompense for the loss. A fortiori he should decision was affirmed by the supreme court. make compensation when he himself carried "The injunction," says the court, "did not it off and converted it during the restraint wash away the work, or any part of it, but which he had procured to be imposed. The it prevented the plaintiff from taking meas- efficient cause of the loss was the inability of ures to protect it against the action of the the defendants, caused by the injunction, to water." The court in that case quotes Mey- take care of and preserve that wbich was senburg v. Schlieper, 48 Mo. 426, where it their own." And so the efficient cause of the was held that one who was enjoined from loss of the goods in this case was the inselling his property until after it was greatly ability of the mortgagee to pursue his legal depreciated in value could recover the amount right to sell these goods, by reason of this inof such depreciation against the party who junction, which was based upon the bond wrongfully sued out the injunction, and Rid- sued 0 here. The opinion above was condlesbarger v. McDaniel, 38 Mo. 138, where it curred in by all the judges, and a strong was held that, if the party had been injured concurring opinion, too long for repetition in consequence of the injunction, he was en- here, was also rendered by Judge Hogeboom; titled to whatever damages he had sustained; and in that case it was also held, under the that destruction of the premises, or their de- contention that the plaintiff and his agent terioration, and all matters whereby the would be liable to an action for an unauthorparty had suffered loss or injury, might be ized conversion of the property, that the taken into account in assessing damages. It remedies were cumulative; that the bond is no doubt true that the liability upon an was intended to be a complete protection to injunction bond is limited to such damages as the enjoined party from all loss which could arise from the suspension or invasion of vest possibly ensue in consequence thereof, so far ed legal rights by the injunction; but it as the same was occasioned by the act of the seems to us that in this case there was both party applying for the injunction, or his an invasion and a suspension of the vested agents. We think it hardly worth while to legal rights of the mortgagee to foreclose his multiply authorities on this proposition. It mortgage, and sell the property mortgaged seems to us that, if the complaint be true, to satisfy his claim. The rule is thus stated the damages alleged were so plainly and apby Sutherland on Damages (volume 2, p. proximately the result of the injunction that 1118): "If an owner is thus deprived of his the court properly overruled the demurrer. personal property, he is prima facie entitled It is argued in the brief of the appellants to recover its value; and this measure of re- that the court sustained a demurrer to the dress has been allowed where the party ob- affirmative defense in defendants' answer, taining the writ, during its pendency, took but the record fails to show that a demurrer possession of the property, destroyed its iden- was either interposed or overruled.

We tity, and converted it to his own use"; citing think, however, that the court would have Barton y. Fisk, 30 N. Y. 166. In that case the been justified in sustaining a demurrer to the plaintiff, claiming to be the owner of certain affirmative matter set up in the answer. This timber lying on the defendants' land, sued was not in any sense an action for converthe latter, who also claimed to own the prop- sion, and it made no difference, so far as the erty, to establish his title. He procured a damages in this action were concerned, preliminary injunction forbidding the de- whether another action could be brought or fendants to assert their alleged ownership by not. Neither could the defendants, the bondssuit in court, or in any other way, pending men, or others in this action, be permitted to the principal suit. He failed in that suit; go behind the final decree in the injunction the court determining that the property be- suit, and assail the validity of the agreement longed to the defendants, and not to the upon which that decree was founded. See 2 plaintiff. In the meantime the plaintiff car- High, Inj. & 1611. ried off the timber, destroyed its identity, We have examined the other errors aland disposed of and converted the proceeds | leged, in relation to the instructions and admission of testimony and the weight of tes- was also another mortgage on the property of timony, and think there was no substantial $3,500, given to one William P. Rhodes by error committed by the court. The judgment Henry C. Rhodes, copartner of William H. will therefore be affirmed.

Box, and Laura Rhodes, his wife, and this

was outstanding against the property at the HOYT, C. J., and SCOTT, ANDERS, and time of the sale by respondent. On the 13th GORDON, JJ., concur.

day of May, 1893, the respondent, acting under the order of the court of March 2, 1892,

offered the property for sale, and John Dob(11 Wash. 90)

son, the appellant herein, bid in the said propIn re BOX et al.

erty for the sum of $300. Afterwards, learn. NEWLAND v. DOBSON.

ing of the incumbrances, he refused to pay

for the same. (Supreme Court of Washington. Feb. 7, 1895.)

On January 10, 1894, the re

spondent procured an order from the court, AssIGNEE'S SALE-CLOUD ON TITLE-RIGITS OF BIDDER.

citing appellant to appear and show cause 1. A bidder at an assignee's sale is justified why he did not complete his purchase. Upon in refusing to complete the purchase when he the petition of respondent, the answer of apafterwards learns of mortgages on the land,

pellant, and the reply of the respondent, the though the assignee expects to have the mortgages discharged without expense to the bidder.

cause was brought on for trial before the 2. Where the bidder at an assignee's sale court, and judgment was rendered against refused to complete the purchase because of in- appellant, to which he duly excepted, and the cumbrances on the land, and the assignee returned that the land is "unsold, and subject to

cause comes here on appeal from such order. the further order of court," eight months after

It is claimed by the respondent that the such return, the bidder cannot be compelled to land in question was afterwards relieved of complete his purchase.

the mortgage of $1,134, and that the mortgage Appeal from superior court, Lewis county; of $3,500 was only an apparent lien upon the W. W. Langhorne, Judge.

property, and that there was nothing in the In the matter of the assignment for the way of respondent's obtaining a good title to benefit of creditors of William H. Box and the land at the time the action was brought. Henry C. Rhodes, partners, to Johu T. New- But it appears that these foreclosure proceedland, assignee, John Dobson was cited to ings were still pending when the appellant show cause why he should not be compelled was cited to appear and perfect his purchase. to complete a purchase at the assignee's sale. This was 8 months after the alleged sale of There was judgment for the assignee, and the property to the appellant, and during the defendant appeals. Reversed.

10 months following the date of the respondMillett & Harmon, for appellant. Reynolds

ent's sale no effort was made to clear up the & Stewart, for respondent.

title to the property. The order dismissing

the mortgage foreclosure proceedings was not DUNBAR, J. The material facts in this made until the final judgment against appelcase are as follows: Box and Rhodes, under lant in this proceeding was signed, and a the firm name of the Chehalis Shingle Com- year after the date of the sale; and the dispany, on the 31st day of October, 1891, made charge of the $3,500 mortgage was not proa general assignment for the benefit of all cured until 10 months after the date of said their creditors to John T. Newland, the re- sale. It was the right of the appellant to obspondent herein. In the deed of assignment tain a good title,-a title that would be perto said assignee was included the land which fect, without imposing the expense on him of was the subject of this action. On March 2, instituting suits to clear the land of incum1892, the judge of the superior court of Lewis brances. It would be an injustice upon the county issued an order directing the respond- appellant to compel him to take an imperfect ent to sell the real and personal property of title to the land, and pay the amount therefor the insolvent estate, and report his action to which he presumed he was paying for a perthe court. Subsequent to said order, on fect title, and then compel him to hire attorMarch 20, 1893, the respondent, by petition, neys to perfect his title; and “where the showed to the court that he had in his posses- court can see that injustice would be inflicted sion and under his control, by virtue of an by the ratification of a sale on a party not in assignment of Henry C. Rhodes to him as as- default, by reason of the carelessness or signee, a note for the sum of $1,134, secured omission of its own officers, it should interby a mortgage upon the real property above fere to prevent it." Freem. Ex'ns, $ 308. It referred to, and asked leave of the court to will not do for the respondent to say that foreclose the same, that it might not be a these were mere clouds upon the title, and cloud upon the title to the said property. | only apparent liens, for the reasons that we Whereupon the court entered an order direct- have above mentioned, that the buyer has a ing the respondent to foreclose said mortgage, right to a perfect title without any expense and to collect, if possible, the amount due on whatever to himself. said note. Under this order, foreclosure pro- But, outside of these questions, the return ceedings were commenced, and were pending of the assignee to the sale, after rehearsing at the time of the respondent's sale as as- the facts of the sale, is as follows: "That signee. Beside the $1,134 mortgage, there | said purchaser afterwards refused to consum

mate said sale by paying the money for which to file his proposed statement of facts. which said property sold, and this assignee The time was extended, by order of the herewith returns said property unsold and court, to January 29, 1894, and the proposed subject to the further order of this court. (7) statement of facts was filed January 25, The assignee further reports that he can 1894. The statute provides that a party demake a good disposition of said property at siring to have a statement of facts certified private sale, and asks that he be permitted must prepare the same as proposed by him, so to do. [Signed] John T. Newland, As- file it in the cause, and serve a copy thereof signee.” The purchaser bad a right to rely on the adverse party. No copy of the stateupon the report of the assignee that he re- ment was served on the respondent after it turned the property unsold, and to présume was filed, but the appellant insists that the that the further report that he could make a law respecting service was complied with good disposition of the property at private by leaving a copy of the stenographer's sale would be acted upon by the court; and notes of the evidence with the respondent's when eight months had expired, and the pur- attorney on the day he applied for further chaser had not been called upon to pay for time in which to file his proposed statement said land, this fact, coupled with the reliance of facts. But it is difficult to understand upon the report above specified, ought to have why he should have desired additional time been absolute. The judgment will therefore in which to file his statement of facts if the be reversed, and the cause remanded, with in- stenographer's notes, which he then had. structions to dismiss this proceeding at the constituted the statement he proposed to expense of the insolvent estate.

file. In contemplation of law, there can be

no statement of facts in a cause until it has HOYT, C. J., and SCOTT, ANDERS, and been properly filed therein; and no valid GORDON, JJ., concur.

service of a statement can be made by copy until the original has been filed. In other

words, service cannot precede the filing of (11 Wash, 76)

the statement. Hastings v. Halleck, 10 Cal. ERICKSON V. ERICKSON.

31; Buffendeau v. Edmondson, 24 Cal. 94; (Supreme Court of Washington. Feb. 7, 1895.) Moulton v. Ellmaker, 30 Cal. 528; Lambert APPEAL-STATEMENT OF FACTS – CERTIFICATION

v. Moore, 1 Nev, 293. We think, therefore, Boxs.

that the statement of facts was not served 1. Under the statute providing that a party as provided by law. On March 13, 1894, desiring to have a statement of facts certified notice was given respondent that appellant must file it in the action, and serve a copy on

would apply to the judge who tried the the adverse party, the service cannot precede the filing.

cause to settle and certify the statement of 2. Under Laws 1893, p. 115, providing, if facts on March 22, 1894, and the state. no amendment to appellant's statement of facts

ment was certified on that day, respondent is made within 10 days after it has been filed and served, such statement may be certified at

not being present. Under the statute, the the instance of either party, a notice to respond- respondent is entitled to 10 days after the ent that appellant would apply to the court to filing and service of the statement of facts certify his statement is without force, where

within which to file and serve any amendno previous service of such statement was made on respondent.

ments which he may propose thereto, but, if 3. Where an appeal bond is radically de- no amendments are filed and served within fective in matters both of form and substance,

that time, then the statement is deemed required by Act March 8, 1893, $$ 6, 7, the appeal should be dismissed.

agreed to, and may be certified by the judge

at the instance of either party at any time, Appeal from superior court, Pierce county;

without notice to any other party, upon Emmett N. Parker, Judge. Action by Jacob Erickson against Z. Erick

proof of service of the statement, and that

no amendments have been proposed. Laws son to recover for labor performed for defendant. There was a verdict for plaintiff,

1893, p. 115. But this cannot be done before and from a judgment thereupon entered for

the expiration of the time for filing amend

ments. Inasmuch the statement was plaintiff, a new trial being denied, defendant

never served as required by law, the notice appeals. Appeal dismissed.

of March 13, 1894, in no way affected the J. H. Cannon, for appellant. John P. Jud

rights of respondent. The motion to strike son, for respondent.

the statement must be granted.

The respondent also moves to dismiss the ANDERS, J. The respondent moves the appeal for the reason that no bond has been court to strike the statement of facts from filed in this cause as required by law. It the record, for the reason that the same was is provided by section 18 of the appeal act not filed, served, settled, or certified as by of March 8, 1893 (Laws 1893, p. 129), that law provided. It appears that the judg- any respondent may move the supreme court ment in this cause was entered on November to dismiss an appeal on the ground that the 27, 1893, and that the statement of facts appeal bond is not in form or substance was not filed within 30 days thereafter. But such as to render the appeal effectual. The on January 22, 1894, the appellant applied | requisites of a proper bond are prescribed to the court for an extension of time in in sections 6 and 7 of the same act. Tested

V.39p.no.2-16

as

by these provisions, the bond filed in this , further defense he alleges that after the macase is certainly not such as to render the turity of the note and on “to wit, between appeal effectual. It is radically deficient, the 19th day of June, 1892, and the 10th day both in form and substance. The appeal of May, 1893," he made a verbal demand must, therefore, be dismissed, and it is so upon plaintiff to bring suit upon the note, ordered.

and prosecute the same to judgment; that

the plaintiff promised so to do, and that deHOYT, C. J., and SCOTT and DUNBAR, fendant, relying upon said promise, did not JJ., concur.

give the written notice contemplated by section 756 of 2 Hill's Code;1 that thereafter,

to wit, on May 10, 1893, plaintiff did insti(11 Wash. 3)

tute suit upon said note, which suit was KITTRIDGE v. STEGMIER et al.

subsequently, on February 21, 1894, dismiss(Supreme Court of Washington. Jan. 22, 1895.)

ed by plaintiff without proceeding to judgRELEASE OF SURETY-REQUEST TO DEBTOR TO SUE ment against Stegmier, the principal. Plain-INDORSEMENT ON NOTE.

tiff replied, denying generally and specific1. A mere oral request by a surety that the creditor sue the principal, and a promise by the

ally each of the several matters of affirmacreditor to do so, does not alone constitute a tive defense contained in the answer. There waiver of the statutory requirement of a notice was a trial to the court, and a jury impanelin writing.

ed, and at the close of the case for plain2. If, after a surety has notified the creditor to bring suit, be acquiesces in the dismissal

tiff the court denied the appellant's motion of the suit brought against him and the prin- for a nonsuit, and an exception was taken. cipal debtor pursuant to such notice, he is not When the evidence was concluded, the released.

3. A surety on a note secured by chattel court, upon plaintiff's motion, directed a mortgage is not prejudiced because, after its verdict for the plaintiff for the amount execution by him, there was indorsed thereon claimed in the complaint. To this ruling an the stipulation, "With privilege of three months' extension, if security remains satisfactory.

exception was taken. From the order over

ruling appellant's motion for a new trial, Appeal from superior court, Spokane coun

and judgment upon the verdict, appellant ty; James Z. Moore, Judge.

prosecutes this appeal. Action by H. H. Kittridge against Fred.

As to the first defense above noticed, it Stegmier, George E. Spoor, and C. W. Car

is sufficient to say that, conceding that apson. There was a verdict for plaintiff, and pellant was merely the surety of Stegmier, from an order denying a new trial, and a

and that the law is that where a creditor judgment on the verdict, defendant Carson

has a surety for a debt, and also has a appeals. Affirmed.

lien on the property of the principal debtor Plummer & Thayer, for appellant. S. & for security, and he releases such lien, the J. W. Douglas and Blake & Post, for re- surety is discharged from liability to the exspondent.

tent of the value of the lien lost, still there

was no evidence introduced from which the GORDON, J. Respondent brought this ac- jury would have been warranted in findtion in the court below against defendants ing that plaintiff released any portion of the Stegmier, Spoor, and Carson, to recover the mortgaged property, or that the proceeds of sum of $864.60 upon a promissory note exe- the sales thereof were not wholly applied cuted to plaintiff by defendants, bearing to the payment of the note. Plaintiff was date Spokane, March 19, 1892, due three the sole witness examined on this branch of months thereafter. Said note bore the fol- the case, and testified as follows: "Steglowing indorsement: “With privilege of mier, after the execution of the note in suit three months' extension if security remains and the chattel mortgage, still held possessatisfactory. H. H. Kittridge.” Appellant, sion of the property described in the mortCarson, alone defended. In his answer he gage, and, from time to time, sold and disalleges that he was a surety for defendant posed of the same, and paid me the proStegmier, receiving no part of the consider- ceeds, which were credited upon the note. ation for which the note was given, which Finally, after the property had about all fact was known to plaintiff'; that to secure been disposed of, the remnant was sold for the payment of said note, Stegmier, his $25, and the proceeds were paid me, and principal, executed to plaintiff a chattel credited upon the note.” He further testimortgage on a stock of goods, consisting fied: "I afterwards released said mortgage, principally of painters' and glaziers' sup- and gave it to Stegmier, after writing on plies, which mortgage contained a provision the same that it was canceled and paid.”' that all moneys received from the sale of

This testimony is nowhere discredited or the mortgaged goods should be applied to denied, and clearly, as to this branch of the the payment of the note; that plaintiff thereafter, instead of requiring that the pro- 12 Hill's Code, $ 756, et seq., provide that ceeds of such sales should be applied to the a surety may require the creditor "by notice payment of the note, permitted Stegmier

in writing," to institute an action on the con

tract, and that if the creditor shall not prosto retain the same, and released a large por

ecute the same to judgment the surety shall be tion of the property so mortgaged. For a discharged.

« ΠροηγούμενηΣυνέχεια »