Day v. Henry

• Decision Date: 10 August 1914
• Docket Number: 11925.
• Citation: 81 Wash. 61,142 P. 439
• Parties: DAY et ux. v. HENRY et al.
• Court: Washington Supreme Court

142 P. 439

81 Wash. 61

DAY et ux. v. HENRY et al.

No. 11925.

Supreme Court of Washington

August 10, 1914

Department 2. Appeal from Superior Court, Yakima County; E. B. Preble Judge.

Suit by J. W. Day and wife against James Henry and another. Judgment for defendants, and plaintiffs appeal. Reversed.

Wende &amp Taylor, of North Yakima, for appellants.

Ryan &amp Desmond, of Seattle, and Englehart & Riggs, of North Yakima, for respondents.

MORRIS J.

Appellants brought this action, seeking to enjoin the sale of community lands owned by them, upon an execution issued upon a judgment rendered against appellant J. W. Day for a wrongful levy made by him while sheriff of Yakima county. A demurrer was interposed to this complaint, upon the ground that the same did not state facts sufficient to constitute a cause of action, which demurrer was sustained and the action dismissed. It will not be necessary to recite the allegations of the complaint, since the above facts are all that are material to the questions submitted by the appeal.

The trial judge filed a memorandum decision, in which he expressed the view that Milne v. Kane, 64 Wash. 254 116 P. 659, 36 L. R. A. (N. S.) 88, Ann. Cas. 1913A, 31,, controls the judgment, and that Brotton v. Langert, 1 Wash. 73, 23 P. 688, which would, if applicable, call for a different rule, is overruled by the latter case. We find no conflict in these two cases. Nor is anything said in the latter case which weakens the authority of Brotton v. Langert, when applied to like facts. Brotton was a constable, and, as such, had sold on execution personal property in which Langert had a special property as mortgagee. Langert then sued Brotton and obtained a judgment against him for the value of the property. Brotton's wife then commenced an action, seeking to prevent the extension of this judgment over community real estate and to obtain an injunction against the selling of the community property under the Langert judgment. The lower court sustained a demurrer to her complaint and dismissed the action, when she appealed to this court, where it was held that the judgment against Brotton, having been obtained against him upon an official act, was not a community debt, and the community property could not be held for its payment. The rule there announced has been cited approvingly in Floding v. Denholm, 40 Wash. 463, 82 P. 738, and McGregor v. Johnson, 58 Wash. 78, 107 P. 1049, 27 L. R. A. (N. S.) 1022. In the Milne Case it was held that a community liability was created when a husband, driving an automobile for hire for the benefit of the community, negligently injured a passenger. It was there contended that the Brotton Case was authority against the community liability, but we held otherwise, finding a distinction between cases where the wrongdoer was an individual belonging to a community, and where the community itself was the wrongdoer. There is no ground for holding that the Milne Case overrules the Brotton Case. The court, in finding a distinction between the two cases, attempted to lay down a line of demarcation which, it seems to us, is an easy one to follow. If the community as such does a wrong, it must respond, just as under the same circumstances...