Beyerle v. Bartsch

• Decision Date: 10 June 1920
• Docket Number: 15613.
• Citation: 111 Wash. 287,190 P. 239
• Court: Washington Supreme Court
• Parties: BEYERLE v. BARTSCH.

190 P. 239

111 Wash. 287

BEYERLE v. BARTSCH.

No. 15613.

Supreme Court of Washington

June 10, 1920

Department 1.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by Karolina Beyerle against George Bartsch, as administrator with the will annexed of the estate of Frederick Stolley deceased. Judgment for defendant, and plaintiff appeals. Affirmed.

Russell & Blinn, of Seattle, for appellant.

Smith Chester & Brown, of Seattle, for respondent.

MACKINTOSH J.

The appellant sues the respondent in his official capacity as administrator with the will annexed of the estate of Frederick Stolley, deceased, for the value of services she rendered Stolley during his lifetime. On May 11, 1917 Stolley's will was admitted to probate and on May 22 respondent was appointed administrator with the will annexed and qualified on November 15, 1917; on the same day an order was made for publishing notices to creditors, and on April 16, 1918, the appellant presented her claim, which was rejected, of which she was notified on July 22, 1918, and thereafter, on August 26, 1918, began this action.

Several defenses are presented to the action, but only one will be noticed here; that is, that the action was not begun within 30 days after the appellant received notification of the rejection of her claim. The appellant, in answer to this defense to the action, claims that she was married to Charles D. Schabel, who was a citizen of Germany, and who was taken into custody as an alien enemy March, 1918, and was still interned at the time of the trial of the action, May 26, 1919; that during Schabel's internment she learned that at the time of her marriage to him he had a wife living from whom he had not been divorced. She thereupon began an action to have her marriage annulled, which proceeded to judgment annulling the marriage. This judgment was entered two days prior to the trial of the present case. From these facts she argues that she, having been the wife of an alien enemy, was entitled to the benefit of the act of Congress, known as the 'Trading with the Enemy Act,' passed October 6, 1917 (U. S. Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3115 1/2a-3115 1/2j), and of section 171, Rem. Code, which provides that, when a person shall be an alien subject or citizen of a country at war with the United States, the time of the duration of the war shall not be a part of the period limited for the commencement of an action, and that the existence of the state of war between the United States and Germany had tolled the statute, and that she was not therefore bound by the statute, which calls for the filing of an action upon rejected claims within 30 days after rejection, and that, although her marriage to Schabel had been annulled prior to the trial of the present case, where an obstacle to the maintenance of an action exists at the time the action is begun, and such obstacle is removed before the time of trial, it does not prevent the hearing and determination of the action.

As we view the facts of this case, the position taken by the appellant does not answer the objection raised to her suit. Her marriage with Schabel having been bigamous, she was, in the eyes of the law, never married to him, the marriage being void ab initio, and therefore, not having been the wife of an alien enemy, she did not herself become an alien enemy, and whatever statutes, federal and state, might operate in suspending litigation between citizens of this country and alien enemies, could not operate either for or against her, and the statute which provides for the beginning of actions upon rejected claims was binding upon her.

We have held that there is no community property without...