Benney v. Clein

• Decision Date: 20 November 1896
• Citation: 46 P. 1037,15 Wash. 581
• Parties: BENNEY v. CLEIN ET AL.
• Court: Washington Supreme Court

46 P. 1037

15 Wash. 581

BENNEY v. CLEIN ET AL.

Supreme Court of Washington

November 20, 1896

Appeal from superior court, King county; R. Osborn, Judge.

Action of replevin by George Benney against S. Clein & T. A Babcock, partners as Clein & Babcock. Judgment for defendants, and plaintiff appeals. Reversed.

Chas F. Fishback and Chas. E. Shepard, for appellant.

Gill Keene & Shaw, for respondents.

GORDON J.

This action was brought by the appellant for replevin of a certain frame building, with certain fixtures and furniture therein of the total value of $300. After certain formal allegations, the complaint alleges the recovery by the respondents, on or about October 5, 1894, of a judgment against the appellant, as garnishee, in an action then pending in the superior court for King county, in which the respondents were plaintiffs, Wandschneider and Campbell were defendants, and the appellant was garnishee; that on November 3, 1894, an execution issued on said judgment, under which the property which is the subject of this suit was levied upon and sold on November 14, 1894, to the judgment creditors in that action (respondents herein). The complaint further alleges that said judgment "was improperly and irregularly entered against this plaintiff [appellant here] as garnishee"; that thereafter on January 8, 1895, the superior court vacated and set aside the judgment against the appellant, as garnishee; a demand for the possession of the property; and an allegation of damage, by the detention, in the sum of $250. A general demurrer was interposed to the complaint, and overruled. Respondents thereupon answered, setting up, in addition to what has already been stated, that the respondents took possession of the property in suit, and retain it, by virtue of the purchase at the execution sale; that appellant had full knowledge of the sale, and of all proceedings, and at no time made objection thereto, permitted it to go on, without attempting to stay it or vacate the judgment, until three months after possession of the property was taken by respondents; that respondents had appealed from the judgment of the superior court, which vacated and set aside the judgment; and that the appeal was then pending. A demurrer to the answer was overruled, and appellant (plaintiff below) replied, setting forth, among other things, that, after the vacation of the judgment, the action had been tried between the respondents (plaintiffs therein) and the appellant (garnishee therein), and resulted in a judgment in favor of appellant upon the merits. When the cause came on for trial, the lower court, on respondents' motion, entered a judgment in their favor upon the pleadings, and dismissed the action.

The question to be determined upon this appeal is the effect of the vacation of a judgment, after an execution sale of personal property, upon the title to the property sold thereunder, and purchased by the execution plaintiff. The appellant insists that the order vacating the judgment, like the reversal of a judgment, operates to avoid a sale made under it as between the parties, and cancels the purchase by the execution plaintiff of the property sold; and counsel have cited numerous authorities to the effect that a reversal of a judgment, as between the parties, is the same as if the judgment had never been, and, by reversal, the judgment ceases to be a justification (as between the parties) for any acts done by virtue of it before the reversal occurred. Counsel for the respondents do not question the soundness of the rule relied upon by appellant in so far as it pertains to a case wherein judgment has been reversed, but insist that a different rule is applicable where the judgment has been vacated merely. The record in this case does not disclose the grounds upon which the judgment in the...