Crawford v. Seattle, R. & S. Ry. Co.

• Decision Date: 17 August 1917
• Docket Number: 13703.
• Citation: 97 Wash. 651,167 P. 44
• Court: Washington Supreme Court
• Parties: CRAWFORD v. SEATTLE, R. & S. RY. CO. et al.

167 P. 44

97 Wash. 651

CRAWFORD v. SEATTLE, R. & S. RY. CO. et al.

No. 13703.

Supreme Court of Washington

August 17, 1917

Department 2. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by William R. Crawford against the Seattle, Renton & Southern Railway Company and others, for the appointment of a receiver, in which James W. Wall, by Louise Wall, his guardian ad litem, filed a petition for the allowance of his claim. From an order of the lower court, fixing the priority of claims, James W. Wall, by his guardian, appeals. Affirmed.

See also, 92 Wash. 670, 159 P. 782; Id., 165 P. 1070.

Carkeek & McDonald and F. C. Kapp, all of Seattle for appellant.

Higgins & Hughes, of Seattle, for respondent.

MOUNT J.

This appeal is prosecuted from an order of the lower court fixing the priority of claims in a receivership. The facts are in substance as follows:

The appellant is a creditor of the Seattle, Renton & Southern Railway Company. He obtained a judgment for personal injuries against that company on the 15th day of March, 1913. In April of that year he filed with the receivers a claim for the amount of the judgment. In this claim it was stated that in the month of December, 1911, the road was taken possession of by officials acting for the bondholders of the railway company; that in January, 1912, appellant was injured by a collision on said road; that on the 3d day of November, 1912 a judgment was rendered in his favor, which judgment was afterwards set aside and a new trial granted; that, in the meantime, receivers were appointed, who took possession of the road and thereafter defended the action, which resulted in a judgment of $5,487.90 on the 15th day of March, 1913. The claim then recites:

'That by reason of the fact that the injury was received shortly before the appointment of the receiver, as aforesaid, and by further reason of the fact that the injury was received while the road was in the direct control, supervision, and operation of the bondholders, this claimant makes a claim against the said road for the sum of $5,487.90 and claims a priority over all claims of any other nature, kind, or description, and particularly against all claims of the bondholders, stockholders, or mortgagees of said road.'

The amount of this claim is not disputed. On October 30, 1914, the appellant was served with a notice that on November 5, 1914, there would be a final hearing on all claims, for the purpose of fixing the amounts and priorities, if not already determined by the court. At this hearing the court determined that there were four classes of claims, designated as A, B, C, and D. Claims in classes A and B were court costs and expenses of receivership. The claims in these classes were adjudged prior to all other claims. The claims in class C consisted of prior mortgages upon the property of the railway company, and were ordered paid prior to the general creditors. Claims in class D were general creditors of the railway company. Upon a hearing of these claims the court entered an order fixing the priority of all the claims, and appellant's claim was fixed in class D. He appeals from that order and makes two contentions: First, that because there was no written answer to his verified claim the averments thereof must be taken as true; and, second, that if taken as true appellant was entitled to priority of payment ahead of the claims of the bondholders secured by mortgage upon the property of the railway company.

The appellant has not brought here a statement of facts. He relies wholly upon the allegations of his claim, and upon the fact that there was no written denial of the statements therein at the hearing. The respondent has brought here a statement of facts certified to by the trial court. The appellant has moved to strike this statement of facts, because it was not served as a proposed statement of facts until eight months after the entry of the order appealed from. In the case of Lauridsen v. Lewis, 47 Wash. 594, 92 P. 440, where the appellant proposed no statement of facts, and where the respondent did propose a statement of facts, which was certified, and where a motion was made to strike the statement of facts, we said:

'It is argued, in effect, that the party who appeals is alone competent to propose a statement of facts. Bal. Code, §§ 5057 and 5058 (P. C. §§ 674, 675), certainly authorize any party to any action or proceeding, and at any state thereof, to propose and cause to be certified a statement of facts or bill of exceptions.'

The sections there referred to are now sections 388 and 389, Rem. Code. The opinion in that case does not show when the statement of facts was proposed by the respondent.

We think it is not necessary to pass upon the motion, because it is conceded that the appellant was notified that a hearing would be held by the court at a stated time to fix the priority of claims allowed by the receiver. A hearing was had, and upon such hearing the court determined that the appellant's claim was not entitled to priority over claims classed as A, B, and C. The determination of the priority of claims was a mixed one of law and fact. It was the duty of the court in determining the priority of claims to determine their character, and in order to do so to examine into questions of fact as to when, how, and for what purpose the claims originated or the debts they represented were incurred.

'The court in which the receivership is pending may fix priorities as between the parties before it, and the relative dignity or priority of the different claims against property in the hands of a receiver may be settled as well before as after the sale of the property.' 34 Cyc. 363.

See, also, 34 Cyc. 346, B.

The court no doubt determined the priority of the different claims, both upon questions of fact and of law, and determined that the claim of the appellant was a claim which should be paid along with the general creditors of the railway company. It therefore devolves upon the appellant to bring to this court the...