Adams v. Dempsey

• Decision Date: 23 April 1904
• Citation: 76 P. 538,35 Wash. 80
• Court: Washington Supreme Court
• Parties: ADAMS v. DEMPSEY.

76 P. 538

35 Wash. 80

ADAMS v. DEMPSEY.

Supreme Court of Washington

April 23, 1904

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by J. F. Adams against Christopher C. Dempsey and others. From a judgment for plaintiff, defendants appeal. Reversed.

See 60 P. 649; 69 P. 738.

Danson & Huneke, for appellants.

W. J Thayer, for respondent.

FULLERTON C.J.

This action was begun in June, 1898, by the respondent, J. F Adams, to recover from the appellant C. C. Dempsey, who was the sheriff of Spokane county, and his co-appellants, who were sureties on his official bond, the value of a stock of groceries and of certain store fixtures which it was alleged the respondent Dempsey, as sheriff of Spokane county, had wrongfully seized and sold. The record discloses that some time prior to the date above mentioned the respondent had been engaged in the grocery business in the city of Spokane, and had sold such business to his brother one Harry C. Adams; that Harry C. Adams thereafter conducted the business in his own name, and while so doing became indebted to sundry wholesale dealers, who began pressing him for payment; that he thereupon executed a chattel mortgage on all his stock and fixtures to his brother J. F. Adams to secure a purported indebtedness of $1,650, and immediately placed his brother in possession of the property. Certain of the creditors of Harry C. thereupon commenced actions on their accounts, and sued out writs of attachments, under which the sheriff seized the mortgaged property, which he afterwards sold on executions issued on judgments obtained in the attachment actions. The present action was thereupon begun, against which the sheriff and his codefendants defended on the ground that the chattel mortgage was in fraud of the creditors of Harry C. Adams, and consequently void. The case was tried before the court and a jury. At the conclusion of the appellant's evidence the respondent challenged the legal sufficiency of such evidence to sustain the charge of fraud, and moved the court to discharge the jury and enter a judgment in his favor, pursuant to the provisions of section 4994 of the Code (Ballinger's Ann Codes & St.). This motion the court denied, and afterwards submitted the question of the good faith of the mortgage to the consideration of the jury, who returned a verdict in favor of the appellants. The respondent thereafter moved the court to set aside the verdict and grant a new trial, and on the hearing of this motion urged anew the question of the sufficiency of the evidence to justify the jury in finding the mortgage fraudulent. The trial judge reconsidered his former ruling, held the evidence insufficient, set aside the verdict of the jury, and entered a judgment in favor of the respondent for $2,083 and costs of the action. This appeal is from that judgment.

Counsel for the respective parties have discussed at length the interesting question whether or not the trial court had power, after the return of the verdict of the jury, to review and reverse its former ruling on the sufficiency of the evidence, but we have found it unnecessary to determine the question. This was the fifth time this case had been tried each trial being had before a jury. On two of these trials the jury disagreed, and on three of them they found for the defendants, the present appellants. The two former verdicts in favor of the defendants were set aside by this court, on the appeal of the present respondent, because of error in the instructions of the court. 22 Wash. 284, 60 P. 649, 79 Am. St. Rep. 933; 29 Wash. 155, 69 P. 738. It is not disputed that the evidence touching the validity of the chattel mortgage was in all of these trials...