Bezich v. Columbia Ins. Co.

• Decision Date: 13 June 1932
• Docket Number: 23566.
• Citation: 168 Wash. 379,12 P.2d 413
• Parties: BEZICH v. COLUMBIA INS. CO.
• Court: Washington Supreme Court

12 P.2d 413

168 Wash. 379

BEZICH v. COLUMBIA INS. CO.

No. 23566.

Supreme Court of Washington

June 13, 1932

Department 2.

Appeal from Superior Court, Pierce County; F. G. Remann, Judge.

Action by Marion Bezich against the Columbia Insurance Company. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

W. L Sachse, of Tacoma, for appellant.

Clarke & Clarke, of Seattle, for respondent.

BEALS J.

Plaintiff instituted this action for the purpose of recovering judgment on a policy of fire insurance issued by defendant covering the furnishings of a restaurant in the city of Tacoma. Defendant insured this property against loss by fire in the sum of $1,700; the property having been damaged by fire several months after the issuance of the policy. A trial to the court sitting without a jury resulted in findings of fact and conclusions of law in defendant's favor, followed by a judgment dismissing the action, from which plaintiff appeals.

Respondent moves to dismiss the appeal, arguing that the same was not seasonably taken. The action was tried June 3, 1931 the trial court reserving its decision. June 17 following, the court filed a written memorandum decision in respondent's favor, copies of which were mailed to counsel for the respective parties. Findings of fact and conclusions of law, together with judgment of dismissal pursuant thereto, were signed July 6, on which date appellant served and filed his motion for a new trial, which motion was overruled by order signed September 12. The notice of appeal was filed October 9, 1931, and respondent argues that the same was not timely, contending that appellant should have moved for a new trial within two days after receiving notice of the filing of the memorandum opinion rendered by the trial court, citing section 402, Rem. Comp. Stat. While appellant might have moved for a new trial within the period fixed by law after notice of the filing of the written memorandum opinion, he was not required to do so, and had the right, under the statute, to make his motion within two days after the entry of the formal judgment in the cause. This being true, the time within which appellant was required to take his appeal from the judgment commenced to run on the date his motion for a new trial was overruled, and, the appeal having been taken within thirty days from that date, respondent's motion to dismiss the appeal must be denied, and it is so ordered.

The trial court found that the property of appellant which was covered by the insurance policy had been damaged by fire in an amount in excess of $1,700, but denied any recovery under the policy, because appellant had, after the issuance of the policy and without notice to the insurer, mortgaged the property, the chattel mortgage having remained in full force and effect up to the time of the fire, and for the further reason that appellant had not seasonably filed with respondent sufficient proofs of loss, as required by the terms of the insurance contract.

The policy sued upon bears date March 17, 1930, and the fire which resulted in appellant's damage occurred January 18 1931. The policy contained the usual provision to the effect that the same should be void if the property covered thereby should become incumbered by a chattel mortgage, such a provision having been by this court held binding in the cases of Inland Finance Co. v. Home Insurance Co., 134 Wash. 485, 236 P. 73, 48 A. L. R. 121, and Dresher v. London, etc., Insurance Co., 153 Wash. 635, 280 P. 57. It is admitted that January 2, 1931, appellant executed a note in the sum of $350, payable to his brother-in-law, John W. Adlder, and that he at the same time executed a chattel mortgage in favor of Mr. Adler in the sum of $350, covering the insured property, which mortgage was on the day it was made filed in the office of the county auditor. Appellant contends that the note and mortgage were never in fact delivered, and that for this reason they never became effective for any purpose, and that the trial court erred in...