Brady v. Onffroy

• Decision Date: 15 March 1905
• Citation: 79 P. 1004,37 Wash. 482
• Parties: BRADY v. ONFFROY.
• Court: Washington Supreme Court

79 P. 1004

37 Wash. 482

BRADY v. ONFFROY.

Supreme Court of Washington

March 15, 1905

Appeal from Superior Court, Whatcom County; Jeremiah Neterer, Judge.

Action by Philip J. Brady against R. Onffroy. From an order modifying a judgment, plaintiff appeals. Reversed.

Fairchild & Bruce, for appellant.

Marshall P. Stafford, for respondent.

HADLEY J.

This action was brought to recover commissions earned by plaintiff through services as a broker. The suit was commenced in King county, and the place of trial was afterwards changed to Whatcom county. At the time the complaint was filed, an affidavit and bond in attachment were also filed; the alleged ground for attachment being that the defendant was a nonresident of the state. At the same time an affidavit for a writ of garnishment was also filed, alleging that the Pacific Packing & Navigation Company, a corporation, controlled personal property belonging to the defendant. Writs of attachment and garnishment were issued and served. Thereafter the defendant appeared, and applied to the court for an order directing the plaintiff to show cause why the attachment and garnishment should not be vacated if the defendant should deposit in court stock of the garnishee company as security. Such an order to show cause was issued, and after a hearing the court denied the application to vacate. Following the above events, the defendant filed in the cause a bond in the sum of $26,000, with the American Bonding & Trust Company of Baltimore City as surety. The bond was conditioned that the defendant should perform the judgment of the court in the cause. At this point in the history of the case on May 14, 1902, the venue was changed to Whatcom county. In the following October, on motion of defendant, an order was entered declaring that the attachment and garnishment were thereby vacated, and also declaring that the surety upon the aforesaid bond given by defendant was released and discharged. The plaintiff attempted to prosecute an appeal to this court from said last-named order, but the appeal was dismissed. Thereafter the cause was submitted to a jury for trial upon its merits, and a verdict was returned against the defendant in the sum of $3,450. Upon he return of the verdict, the clerk, under the terms of section 1, c. 148, p 285, Laws 1903, entered judgment. The judgment was entered against the defendant and also the surety upon the aforesaid bond. Some time afterwards the defendant moved to strike from the record of the judgment so much thereof as awarded recovery against the surety, which motion was granted. The plaintiff has appealed from the order of the court in modifying the judgment.

Respondent has moved to dismiss the appeal. The point is made that there was no service of the appeal notice upon the surety company. The notice was given in open court. By the terms of the statute, the surety company had appeared in the action, and was before the court. Sections 5374, 5375, 2 Ballinger's Ann. Codes & St. The surety company therefore had notice of the appeal. It is further urged upon the motion to dismiss that the order designated in the notice of appeal is not appealable. It was a final order made after judgment, which affected a substantial right of appellant. Such an order is appealable, under section 6500, subd. 7, 2 Ballinger's Ann. Codes & St. The motion to dismiss the appeal is denied.

It is assigned by appellant that the court erred in making the order of October, 1902, purporting to discharge the attachment and release the surety, and it is argued by respondent that that order became res adjudicata as to the subject-matter involved in this appeal. It will be remembered that an order had been previously entered denying the vacation of the attachment and garnishment. It is argued by appellant that the first order became res adjudicata, and that, in the absence of an appeal and reversal for error, it remained the law of the case. The first order was, however, based upon a mere application for the discharge of the attachment upon an order to show cause why it should not be done if the respondent should deposit stock in court as security. No other ground for the discharge of the attachment and garnishment appears to have been raised at the time that order was made. Subsequently, however, affidavits were filed alleging that the respondent was a resident of Whatcom county, in this state, at the time the attachment and garnishment were sued out. The affidavits appear to have been filed for the purpose of procuring a change of venue to Whatcom county, as the proper place for trial. The venue was changed for that reason, and after the case reached said county the court made the order of October, 1902, discharging the attachment and bond. The order was based upon the affidavits in the record that the respondent was a resident of this state, the only ground alleged for the attachment being that of nonresidence. The first order was therefore not res adjudicata, inasmuch as the subject then adjudicated was not that of residence, but the proposition to deposit stock as security in lieu of the attachment and garnishment.

It will also be remembered that an attempt was made to take an appeal from the order of October, 1902, which purported to discharge the attachment and bond. The dismissal of that appeal had the effect of an affirmance of the order. It therefore becomes necessary to determine what force should have been given to that order at the time the one now appealed from was made. If there was nothing for the order of October, 1902, to act upon, then it was of no force, and its affirmance by the dismissal of the appeal gave it no more vitality than it already had. The respondent's bond was filed in the cause months before that order was made. It was conditioned that the respondent would perform the judgment of the court, and, under the terms of section 5374, 2 Ballinger's Ann. Codes & St., the attachment was thereby discharged. It follows that when the order of October, 1902, was made, the attachment had long since been discharged by the giving of the respondent's bond. The filing and approval of the bond ended the attachment, and there was no attachment pending before the court at the time the order was made upon which it could operate. It was therefore a nullity for want of subject-matter. The same was also true of that part of the order which purported to discharge the surety upon the bond. The motion of respondent sought the discharge of the surety solely as a consequence to follow from the discharge of the attachment. It is manifest that the court did not determine as to the surety's liability upon any other theory. The motion asked for the order merely upon the ground that the attachment was wrongfully issued. The question of the surety's liability, without regard to the regularity of the attachment, was not before the court. That question was therefore not adjudicated, and the...