Clark v. Eltinge

• Decision Date: 18 April 1905
• Citation: 38 Wash. 376,80 P. 556
• Court: Washington Supreme Court
• Parties: CLARK et al. v. ELTINGE et ux.

80 P. 556

38 Wash. 376

CLARK et al. v. ELTINGE et ux.

Supreme Court of Washington

April 18, 1905

Appeal from Superior Court, Spokane County; Geo. W. Belt, Judge.

Action by William A. Clark and another against Charles S. Eltinge and wife. From a judgment for defendants, plaintiffs appeal. Reversed.

B. C Mosby, for appellants.

William T. Stoll and B. B. Adams, for respondents.

ROOT J.

In 1885, while respondents were residing, as husband and wife in the state of Montana, the husband borrowed from assignors of appellants the sum of $4,270, giving his promissory note therefor, secured by mortgage upon the property which he bought with the money and used as a home for himself and wife. Subsequently they changed their residence to this state, and turned over the possession of the mortgaged property to appellants, who collected the rents, paid therefrom taxes and incidental expenses, and applied the balance as payment upon the note. In 1899 appellants foreclosed the mortgage and applied the proceeds of the sale of the property upon the note. No deficiency judgment was taken, no personal service having been had upon respondents. Appellants brought the present action to recover the balance due upon said note. This case has been appealed here by these same appellants twice heretofore. 29 Wash. 215, 69 P. 736; 34 Wash. 323, 75 P. 866.

Some of the questions involved in the present appeal appear to have been decided in the former decisions, and we have no disposition to change the conclusions therein announced. In the trial from which the present appeal was taken there was a question as to how much of the rental of the premises should be credited upon the note. Appellants claimed that the property was turned over to them, and that they were to get such an amount of rentals as they could and, after deducting the taxes and costs of necessary repairs and incidental expenses, apply the balance as credits upon the note. Respondents claimed that they were to be allowed a straight credit of $35 a month for the use of said premises. This issue was one of fact for the jury to determine upon the evidence.

It is also contended by the appellants that the allowance of credit for rentals should be only for that period prior to the foreclosure of the mortgage. Respondents, however, claim, and the trial court held and instructed the jury, that they were entitled also to an allowance of credit of the rentals for the period of the one year of redemption following the date of the foreclosure. Said court based its ruling on the statute of 1897 (chapter 87, p. 227, Laws 1897) of this state. We think the appellants' contention must be sustained. At the time this mortgage was foreclosed, the law of this state permitted the purchaser to enter into possession of the property immediately upon the confirmation of the sale upon foreclosure. Sess. Laws 1899, p. 92, c. 53. At the time of the execution of the mortgage the law was practically the same. 2 Hill's Ann. St. & Codes, § 519; Debenture Corporation v. Warren, 9 Wash. 312, 37 P. 451; Hardy v. Herriott, 11 Wash. 460, 39 P. 958; Knipe v. Austin, 13 Wash. 189, 43 P. 25, 44 P. 531; Hagerman v. Heltzel, 21 Wash. 444, 58 P. 580. During the period of two years, from 1897 to 1899, there was in existence a statute allowing the judgment debtor to have possession of property during the year of redemption (Laws 1897, p. 227, c. 87); but we cannot see why that statute should apply here. The charge of the trial judge to the jury, wherein he authorized them to credit said year's rental upon the note, was therefore erroneous.

The question of the wife's liability is again presented upon this appeal. As to whether or not she was liable in any way for this debt must depend upon the law of Montana as it existed at the time the indebtedness was created. In the absence of a showing as to what the law of Montana was regarding this matter, it must be presumed to have been the same as the law of this state. Clark v. Eltinge, 29 Wash. 215-223, 69 P. 736; Gunderson v. Gunderson, 25 Wash. 459, 65 P. 791.

It was held by this court when this case was here before that under the laws of this state this debt would be a community debt. As to the question of her separate property being liable for this obligation under the statutes of that state, this court, in 34 Wash. 327, 75 P. 868, said: 'Whether that fact brings this debt within the classification of the husband's liabilities for which the wife's separate property is not exempt, we apprehend, must depend upon the construction placed upon the statute by the courts of Montana, and resort must be had to such construction, as a fact, to determine the force of the statute when applied to the facts here.' In view of this holding, respondents in the last trial placed upon the witness stand an attorney of many years' experience in the practice in the state of Montana, and sought to show by him 'the consensus of opinion of the bench and bar of Montana as to the meaning of that section'--referring to a section of the Montana statutes relating to exemptions of a wife's property. We do not believe this is a proper method of ascertaining the construction to be placed upon the statutes of a sister state. Doubtless the general rule is that a person learned in the law of a foreign state or country may give evidence as to what the law of that state or country is. When the law in question is a statute of a sister state, and the text of that statute is before the court, as it was in this case, the question of the construction to be given to the language thereof should be determined by ascertaining, if possible, the construction given said statute by the highest court of that state. If this cannot be ascertained, it would be doubtless competent to show what the holdings of courts of general jurisdiction in that state were as to this law. If no proof as to the holding of any court of that state is produced, then it is the duty of the court where the trial is being had to interpret and construe the statute of said sister state according to the same rules that are applicable in the construction of a domestic statute. This we conceive to be the proper method, instead of attempting to prove by some lawyer his view of said statute, or his opinion as to what the consensus of the opinion of the bench and bar of said other state might be. In the case at bar, if the attorney in question had testified that the Supreme Court of Montana had construed the statute in question in a certain manner, or that said court had never passed upon said statute, but that some certain court or courts of general jurisdiction in said state had construed it in a certain manner, and that it had not been construed differently by other courts of that state, this, perhaps, would have been competent evidence. But the evidence as given by this witness was indefinite and uncertain, and purported to be principally his own opinion as to the meaning of the statute to which his attention was called, and his conception of what the consensus of opinion of the bench and bar was touching the construction of said statutes.

Respondents contend that the foreclosure decree of the circuit court of Silver Bow county, Mont., is not, as to the fact of foreclosure, conclusive upon the court here, because that proceeding was commenced by service of summons by publication, and the record does not show that the summons was published in the manner and...