Armour v. Seixas

• Citation: 80 Wash. 181,141 P. 308
• Decision Date: 25 June 1914
• Docket Number: 11788.
• Parties: ARMOUR v. SEIXAS et al.
• Court: United States State Supreme Court of Washington

141 P. 308

80 Wash. 181

ARMOUR v. SEIXAS et al.

No. 11788.

Supreme Court of Washington

June 25, 1914

Department 1. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by R. M. Armour against Frederick L. Seixas and the Elliott Bay Investment Company. Judgment for plaintiff, and defendants appeal. Reversed and remanded for further proceedings.

Byers &amp Byers, of Seattle, for appellants.

H. D Allison, of Seattle, for respondent.

ELLIS J.

This is an action of claim and delivery to recover the possession of an automobile. It was originally commenced against the defendant Seixas alone. He answered, alleging that, prior to the commencement of the action, he had delivered the property to the Elliott Bay Investment Company. On his demand the court ordered that that company be made a party defendant. The Elliott Bay Investment Company answered, admitting possession, and claiming ownership. The plaintiff replied to these answers. The cause was tried to the court without a jury. The court found in substance that about May 29, 1911 the Elliott Bay Investment Company, a domestic corporation, sold to the plaintiff, the defendant Seixas, and one Thorne a certain automobile for $1,000; that the automobile was delivered to the partners, and was rightfully in their possession; that subsequently Thorne and the defendant Seixas transferred to the plaintiff all their right and interest in the automobile, and delivered to him the possession thereof, which transaction was evidenced by a written agreement executed about August 21, 1911; that on or about the 15th day of December, 1911, the defendant Seixas wrongfully, and without due process of law, took the automobile into his possession and from the possession of the plaintiff, and has ever since refused to deliver it to the plaintiff; that, at some date subsequent to the taking of the automobile, Seixas wrongfully delivered the possession thereof to the defendant Elliott Bay Investment Company, which now has possession thereof; that, prior to the commencement of this action, the plaintiff made demand upon the defendant Seixas for a return of the automobile, which was refused; that, at the time the defendant Elliott Bay Investment Company was made a party to this suit, demand was also made upon that company for the delivery of the automobile, which was refused; that at all times since August 21, 1911, plaintiff was, and now is, the owner of the automobile and is entitled to the possession thereof; that the value of the automobile is the sum of $1,000. These findings, save the last, were supported by the evidence. They were made on March 3, 1913. Upon appropriate conclusions of law, the court, on the same day, entered judgment against both defendants for the delivery of the automobile to the plaintiff within 20 days from the entry of judgment, or, in case of appeal and supersedeas, within 7 days from the return of the remittitur, and, in the event that the automobile cannot be delivered to the plaintiff, he have and recover judgment against the defendants, and each of them, for the sum of $1,000 and his costs, and that execution issue therefor. Both defendants appealed.

1. The appellants first claim that the judgment should be reversed for the reason that the complaint falled to allege, and the evidence to show, that the automobile was in King county when the suit was brought. We find it unnecessary to decide whether, in a suit of this character, it is necessary to allege the presence of the res in the county where the action is brought. It was alleged that all of the parties resided in King county, and inferentially that all of the transactions found by the court took place in that county. In its answer, the appellant Elliott Bay Investment Company admitted its possession of the automobile, and claimed the right to possession as owner. The pleadings did not show, nor did it develop in evidence, that the automobile was not, at all the times mentioned, within King county. Under the rule announced in Andrews v. Hoeslich, 47 Wash. 220, 91 P. 772, 18 L. R. A. (N. S.) 1265, 125 Am. St. Rep. 896, 14 Ann. Cas. 1118, and followed in State ex rel. Gourley, Executor, v. Smith, 139 P. 158, the plaintiff was entitled to maintain his action. The decision in Dow v. Dempsey, 21 Wash. 86, 57 P. 355, rests on different facts.

2. The appellants moved for a nonsuit; the only specific ground mentioned being that no demand upon either of them for the delivery of the automobile was pleaded or proved. It is true that no demand was pleaded, but demand upon Seixas was proved.

As to the appellant Elliott Bay Investment Company, no demand was necessary. It claimed that right of possession as owner. This absolved the plaintiff from making demand. Seattle National Bank v. Meerwaldt, 8 Wash. 630, 635, 36 P. 763, 34 Cyc. pp. 1410, 1411.

3. While the cause was pending on the appellants' motion for a new trial, the Elliott Bay Investment Company moved for leave to file a supplemental answer, setting up the fact that, since the trial, it had been garnished by certain creditors of the respondent, Armour, as a debtor of Armour, or having in its possession propery belonging to Armour, and moved for a continuance or stay of proceedings until the determination of the garnishment cases. The court denied permission to file the supplemental answer and refused a continuance or stay. In this we think the court was partially in error.

There was no error in the refusal to stay the entry of judgment. That was a matter resting largely in discretion. The court, however, should have permitted the filing of the supplemental answer and received evidence as to the truth of its allegations. If it then found that in fact such garnishments were pending, it should have either stayed the entry of the judgment or incorporated in the judgment a stay of execution either in whole or in part, as was necessary to protect the appellant from a double liability for the same debt, until the garnishments were disposed of. The appellant, as garnishee, was entitled to some opportunity to protect itself. Ulrich v. Hower, 156 Pa. 414, 27 A. 243. In Rood on Garnishment, § 197, what we believe to be the correct rule is stated as follows:

'In such cases the proper practice is to bring the fact of the garnishment to the attention of the court by motion, petition, plea, or plea puis darrein continuance, as the circumstances may require, whereupon the court will stay all proceedings before judgment, or allow judgment to be entered, with stay of execution, in whole or in part, as justice demands; and, if judgment has been rendered, execution will be stayed till the garnishment is disposed of.'

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