Andrews v. Uncle Joe Diamond Broker

• Decision Date: 12 December 1906
• Citation: 87 P. 947,44 Wash. 668
• Court: Washington Supreme Court
• Parties: ANDREWS v. UNCLE JOE DIAMOND BROKER.

87 P. 947

44 Wash. 668

ANDREWS v. UNCLE JOE DIAMOND BROKER.

Supreme Court of Washington

December 12, 1906

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by Jacob Andrews against the Uncle Joe Diamond Broker, a corporation, and another. From a judgment in favor of plaintiff the defendant corporation appeals. Reversed and remanded.

John E. Humphries and Geo. B. Cole, for appellant.

E. J Grover and Allen, Allen & Stratton, for respondent.

HADLEY J.

This is action in replevin to recover the possession of a diamond ring, or the value thereof, and its value is alleged to be $250. Joseph Hoeslich and Uncle Joe Diamond Broker, a corporation, were made defendants. The complaint alleges that in August, 1904, the defendant Joseph Hoeslich was conducting a loan and pawnshop business in Seattle, under the name of 'Uncle Joe,' and otherwise known as 'Uncle Joe Loan Office'; that in said month the plaintiff pawned with said Joseph Hoeslich the ring in question, of which plaintiff was the owner, and that he received thereon the sum of $50, with the understanding and agreement that the ring should be kept by said Hoeslich until said sum was repaid, it being further agreed that, if the sum was repaid within one year, then in that case plaintiff should pay $15 for the use of the money, or $65 in all, but, if redemption was not made within a year, then plaintiff was to pay $25 for the use of the money, or $75 in all. It is also alleged that said Hoeslich then delivered to plaintiff a receipt in writing setting forth said agreement, which was numbered 9,041, and that entry thereof was made in the books of said loan office that thereafter, on the 2d day of November, 1905, plaintiff tendered the sum of $75 to defendant Joseph Hoeslich at said loan office and demanded the return of the ring, which was refused. Further allegations are to the effect that, after the making of said pledge agreement, the said Hoeslich incorporated said loan office and business, under the name of 'Uncle Joe Diamond Broker,' such incorporation being simply for convenience and for the purpose of taking over and conducting the business theretofore conducted by Hoeslich; that the business was so taken over, and that in consideration for the transfer, the corporation assumed and agreed to pay all indebtedness incurred by said Hoeslich in conducting said business, and agreed to carry out and perform all contracts as to pledged property made by him. It is alleged that plaintiff also tendered to said corporation defendant the sum of $75, and demanded the return of the ring, which was refused, and that he now tenders and pays the same into court. Issue was joined by the corporation defendant, and a trial was had before the court without a jury, resulting in a judgment against the corporation for the return of the ring to plaintiff, or, in case return thereof cannot be had, judgment is awarded to plaintiff for $250, the value of the property. This appeal is from the judgment.

A motion has been made to dismiss the appeal on the ground that no bond on appeal was filed within five days after service of the notice of appeal. The notice of appeal bears date July 16, 1906, and the file marks show that it was filed the same day. The bonds was also dated and filed July 16. The service clause appended at the foot of both the notice and bond, and signed by respondent's attorney, bears date July 9th, which was seven days before the actual date of the notice and bond. The argument is made that the service date of the notice shows that the appeal was taken on the 9th, and that, as the bond was not filed until the 16th, it was not within five days after the appeal was taken. The service date of the notice is manifestly an error, since it antedates the instrument itself. The same error appears upon the bond, and the record satisfies up that the appeal was not taken until the 16th, and the bond was both served and filed on that day, which was within time to perfect the appeal.

The motion to dismiss the appeal is urged upon the further ground that the appeal is from a judgment against one of the defendants only, and that the action is still pending in the lower court upon issues joined by the defendant Joseph Hoeslich. The record, however, shows that no appearance had been made and no issue had been joined by the defendant Hoeslich...