Allen v. Allen

• Decision Date: 15 June 1917
• Docket Number: 13879.
• Citation: 96 Wash. 689,165 P. 889
• Court: Washington Supreme Court
• Parties: ALLEN v. ALLEN (ALLEN et al., Garnishees.

165 P. 889

96 Wash. 689

ALLEN v. ALLEN (ALLEN et al., Garnishees.

No. 13879.

Supreme Court of Washington

June 15, 1917

Department 1. Appeal from Superior Court, King County; E. C. Mills Judge.

Action by Laura Allen against J. H. Allen, wherein Benna K. and J Howard Allen, Jr., were garnished. From judgments discharging the garnishees, plaintiff appeals. Affirmed.

Jay C. Allen, of Seattle, for appellant.

Bronson Robinson & Jones, of Seattle, for respondent.

MAIN J.

This is an appeal from a judgment of the superior court, discharging two writs of garnishment.

The facts are these: Some time during the month of March or April, 1914, Jay C. Allen, an attorney at law, residing at Seattle, intending to be absent from the state a number of months, arranged with J. H. Allen to look after his law business during such absence. Jay C. Allen, at this time, and for some time prior thereto, was, and had been, an attorney for one John Joyce. Prior to July 6, 1914, there had been paid into the registry of the court the sum of $6,797.64 for the benefit of Joyce. On the date last mentioned, J. H Allen, as an attorney for Joyce, withdrew this money from the registry of the court. After being absent for a number of months, Jay C. Allen returned to Seattle, and shortly after his return and early in the month of October Joyce called his attention to the fact that he had not received the money which had been withdrawn from the registry of the court by J. H. Allen. At this time J. H. Allen was insolvent and unable to pay over the money. On October 22, 1914, the respondent Laura Allen advanced the money to pay Joyce, and took an assignment of his claim against J. H. Allen. On December 7, 1914, Laura Allen brought an action upon the assigned claim against J. H. Allen. On the same date Laura Allen caused a writ of garnishment to be issued in the case which she had brought against J. H. Allen, and served upon Howard Allen. On January 11, 1915, Laura Allen brought an action against J. H., or J. Howard Allen, Jr., who, to avoid confusion, will be referred to as Howard Allen. In this action it was claimed that Howard Allen was indebted to J. H. Allen in a large sum of money, and judgment was therein sought against Howard Allen. On January 19, 1915, Laura Allen brought an action against Howard Allen and Benna K. Allen, his wife, claiming that on January 9, 1915, J. H. Allen, for a valuable consideration, had conveyed and transferred to the plaintiff therein his right, title, and interest in and to certain property. It was claimed in the complaint that Howard Allen and wife held certain of the property covered by this assignment in trust for J. H.

Allen, and judgment was sought, declaring such trust, and for an accounting. The two actions last referred to were consolidated, and were tried before the Honorable Everett Smith, one of the judges of the superior court for King county, the trial having occurred during the month of April. On May 3, 1915, Laura Allen caused a writ of garnishment to be issued out of the same action in which Howard Allen had previously been made garnishee defendant, and caused the same to be served upon Benna K. Allen. These writs of garnishment were respectively answered by Howard Allen and Benna K. Allen, each denying that they had in their possession, or under their control, money or property belonging to J. H. Allen. These answers were controverted by Laura Allen. On November 29, 1915, the issues in the two garnishment proceedings came on for trial before the Honorable Edward C. Mills, judge of the superior court for Walla Walla county, then sitting in King county. On March 9, 1916, two judgments were entered, one discharging Howard Allen as garnishee, and the other discharging Benna K. Allen as garnishee. In the garnishment proceeding against Benna K. Allen, formal findings of fact and conclusions of law were made and entered. In the proceeding against Howard Allen, no findings were made other than a recital in the judgment. On March 15, 1916, Laura Allen made a motion to vacate the findings of fact and conclusions of law, which was subsequently overruled. From the judgments discharging the garnishees, this appeal is prosecuted.

It is first claimed that the judgment discharging Benna K. Allen as garnishee should be reversed, because the appellant had no notice of the time and place that the findings and conclusions of law would be presented to Judge Mills for signature. A copy of the findings and conclusions of law were served upon the attorney for the appellant on the 6th day of March, 1916. On the 8th day of March the findings and conclusions of law and judgment were signed by Judge Mills in Walla Walla county, and by him were returned to the attorneys for the respondent, who caused them to be filed in the superior court of King county. In signing the findings and conclusions of law and judgment in Walla Walla county, Judge Mills did not exceed his jurisdiction. Section 42, Rem. Code; State ex rel. Calhoun v. Superior Court, 86 Wash. 492, 150 P. 1168.

As a matter of law, the appellant was not entitled to notice of the time and place of signing the findings of fact and conclusions of law and judgment. Upon this question, in Lindsay v. Scott, 56 Wash. 206, 105 P. 462, it was said:

'The appellants were not entitled to notice of the time and place of signing the findings of fact, conclusions of law, or judgment, as a matter of law, nor were they deprived of the benefit of exceptions for want of notice. The right to except continues until the lapse of five days after notice of the filing of the findings, under the express terms of the statute, and repeated rulings of this court.'

It is next contended that the judge before whom the case was tried had no jurisdiction to hear and determine the motion to vacate the findings and judgment in any county other than King county. The hearing and determining of the motion to vacate was irregular and not authorized by the statute; but, unless prejudice is shown, it does not furnish a ground for reversal. The cause here is tried de novo, and since we are of the opinion that the motion to vacate was properly denied, a new trial should not be ordered. In Shaw v. Spencer, 57 Wash. 587, 107 P. 383, it was said:

'The case was heard in the court below before Judge Holcomb of Adams county. After his return to Ritzville, the judge heard and denied a motion for a new trial, interposed by the appellants, and upon this ruling the first error is assigned. After providing that superior judges may make and sign certain orders outside of their respective counties, section 1 of Laws of 1901, p. 76 (Rem. & Bal. Code, § 41), expressly provides, 'That nothing herein contained shall authorize the judge to hear any matter outside of the county wherein the cause or proceeding is pending, except by consent of the parties.' Under this provision, a judge of the superior court cannot properly hear a motion for a new trial outside of the county wherein the cause is pending, except by consent of the parties, and the action of the trial judge in this respect was irregular; but the case is heard here de novo, and no prejudice has resulted to any party in interest, if the new trial was properly denied.'

Upon the merits, we will first consider the appeal from the judgment discharging Benna K. Allen as garnishee. On August 7, 1914, J. H. Allen gave to Benna K. Allen, his daughter-in-law, certain articles of personal property included in which were three diamond rings, which were chiefly valuable on account of the diamonds. It is these three diamonds which are the basis of the controversy upon this appeal. There are two reasons why the judgment of the trial court should not be disturbed: First, if we understand the record correctly, the title to these same diamonds was tried in the consolidated cases heard before Judge Smith, and Benna K. Allen's title thereto was sustained. The property described in the complaint in that action includes 'three diamond rings (one 3 5/8 carat, one 1 1/7 carat, and one small one).' Laura Allen, in her controverting affidavit, in the garnishee proceeding against Benna K. Allen, described the diamonds which the latter had in her possession, and which it is contended were given to her in fraud of creditors, as follows: 'Three...