Agricultural & Live Stock Credit Corp. v. McKenzie, 21991.
| Decision Date | 08 July 1930 |
| Docket Number | 21991. |
| Citation | 289 P. 527,157 Wash. 597 |
| Court | Washington Supreme Court |
| Parties | AGRICULTURAL & LIVE STOCK CREDIT CORPORATION v. McKENZIE et al. PORTLAND LIVE STOCK CO. v. KALANQUIN. KALANQUIN v. McKENZIE et al. |
Department 1.
Appeal from Superior Court, Snohomish County; Ralph S. Bell, Judge.
Action by the Agricultural & Live Stock Credit Corporation against Perry H. McKenzie, Portland Live Stock Company, and others and suit by Augusta Kalanquin, as an individual and as administratrix of the estate of Dean J. Kalanquin, deceased against Perry H. McKenzie and wife and the Portland Live Stock Company. The causes were consolidated for trial, and from the decree, the Agricultural & Live Stock Credit Corporation and the Portland Live Stock Company appeal.
Affirmed.
Huffer Hayden, Merritt, Summers & Bucey, of Seattle, for appellants.
Earl W. Husted and Anderson & Richards, all of Everett, for respondents.
For the purpose of foreclosing its chattel mortgage covering a herd of dairy cattle owned by Perry H. McKenzie and pastured upon a farm in Snohomish county, leased by the defendant from Augusta Kalanquin, the Agricultural & Live Stock Credit Corporation commenced an action April 16, 1928, against McKenzie. On July 14, 1928, Augusta Kalanquin instituted an action against the Portland Live Stock Company and Perry H. McKenzie and wife for the foreclosure of an alleged agister's lien upon the live stock and for the appointment of receiver, in view of the threatened removal of the stock from the jurisdiction of the court by the defendants. Hearing was had (the defendants appearing and resisting the appointment of a receiver) resulting in the entry of an order appointing Paul R. Philbrick as permanent receiver to 'feed and care for said cattle, milk the cows and market the milk, using the proceeds in a careful and prudent manner in the purchase of food, care, labor and supplies reasonably necessary to care for and maintain said stock and that he shall at all times remain subject to the further order of the court.'
On July 23, 1928, by amended complaint in the chattel mortgage foreclosure action, the Agricultural & Live Stock Credit Corporation joined as defendants, in addition to Perry H. McKenzie (the original defendant), McKenzie's wife, the Portland Live Stock Company, the Co-operative Mercantile Company, and Augusta Kalanquin. On September 17, 1928, all of the defendants (except Augusta Kalanquin against whom an order of default had been entered for failure to answer) consenting, the court entered a decree foreclosing the chattel mortgages of the Agricultural & Live Stock Credit Corporation and of the Portland Live Stock Company which were adjudged first and second liens, respectively, upon the herd of cattle. Augusta Kalanquin was adjudged to have no lien upon, or title to, any of the cattle in the herd. On October 15, 1928, the court vacated, upon Augusta Kalanquin's motion, the default and the final decree as to her.
On October 30, 1928, the two causes were consolidated for trial, and an order was entered the same date, to which the appellants consented and with which the receiver complied, directing the receiver to sell the cattle. The substance of the decree resulting from the trial of the consolidated actions in January, 1929, is as follows:
Augusta Kalanquin was again adjudged to have no lien upon or title to any of the cattle as against the two live stock companies but was granted a personal judgment against McKenzie and wife on account of pasturage of the live stock. For disbursements incidental to the receivership and for his compensation and attorney's fees the receiver was adjudged entitled to the sum of $1,360.34 which was declared to be a paramount charge upon the proceeds of the sale of the cattle, prior in rank to the lien thereon of the chattel mortgage rights of the two live stock companies. Those two companies were granted a judgment against Augusta Kalanquin for $200, representing the compensation of the receiver and the allowance of the receiver's attorneys' fees.
The appeal is prosecuted by the two live stock companies from the order entered October 15, 1928, vacating the default and final decree as to Augusta Kalanquin in the chattel mortgage foreclosure action; and from that part of the decree entered January 31, 1929, in the consolidated actions, ordering the receivership expenses paid out of the proceeds of the sale of the cattle as a charge prior in rank to the appellants' chattel mortgage liens.
Appellants first contend that the court abused its discretion in vacating the default decree in the mortgage foreclosure action.
In support of the motion to vacate and set aside the default and decree, the respondent and one of her present counsel submitted affidavits to the effect that the respondent was served with the amended complaint in the mortgage foreclosure action and submitted the same to her then attorney, Mr. Husted; that Mr. Husted departed from this state and turned the agister lien case over to Mr. Richards of the firm of Anderson & Richards, who was retained September 24, 1928, by the respondent; that at the time Richards received the agister lien papers from Husted the former was not advised of the mortgage foreclosure cause; that the default was taken prior to the date the respondent retained her present counsel and while her former attorney was absent from the state. The controverting affidavits of appellants are to the effect that the respondent and her present counsel had knowledge of the status of both cases; that the parties negotiated for the settlement of the two causes but no understanding was had that respondent's time to answer the complaint would be extended.
It fairly appears, and the order vacating the default so declares, that prior and subsequent to the entry of the order of default August 17, 1928, negotiations for an adjustment of the claims and differences of all of the parties to both actions were carried on between counsel for the appellants and the then counsel (Mr. Husted) for the respondent. While the negotiations were under way Mr. Husted departed from the state, and in the subsequent negotiations the respondent was represented...
To continue reading
Request your trial
-
Little v. King
...abuse of discretion is required for reversal than where trial on the merits has been denied") (citing Agricultural & Livestock Credit Corp. v. McKenzie, 157 Wash. 597, 289 P. 527 (1930)). Indeed, a treatise commentator has observed that it is "difficult to find" cases reversing a trial cour......
-
Boss Logger, Inc. v. Aetna Cas. & Sur. Co., 40238-2-I
...likely to be found if the default judgment is set aside. White, 73 Wash.2d at 351-52, 438 P.2d 581; Agricultural & Livestock Credit Corp. v. McKenzie, 157 Wash. 597, 289 P. 527 (1930). The standard of review on appeal of a summary judgment order is de novo, with the reviewing court performi......
-
Denison v. Gorman
...to be found if the default judgment is set aside. Id. (citing White, 73 Wn.2d at 351-52; Agric. &Livestock Credit Corp. v. McKenzie, 157 Wash. 597, 289 P. 527 (1930)). The Denisons argue in error that the four factors identified in White as those considered in deciding whether to vacate a d......
-
Richter v. Helinski
... ... -storage tanks, shipping containers, and stock of horse ... semen. Two of the shipping ... In Agriculture & Live Stock ... Credit Corp. v. McKenzie , 157 ... ...