Dittenhoefer v. Coeur d'Alene Clothing Co.

• Decision Date: 07 July 1892
• Citation: 4 Wash. 519,30 P. 660
• Court: Washington Supreme Court
• Parties: DITTENHOEFER ET AL. v. COEUR D'ALENE CLOTHING CO. ET AL.

30 P. 660

4 Wash. 519

DITTENHOEFER ET AL. v. COEUR D'ALENE CLOTHING CO. ET AL.

Supreme Court of Washington

July 7, 1892

Appeal from superior court, Pierce county; FREMONT CAMPBELL, Judge.

Action by Henry T. Dittenhoefer and others against the Coeur d'Alene Clothing Company, principal defendant, and the St. Paul German Insurance Company and the Hekla Fire Insurance Company, garnishees. Plaintiffs had judgment against defendants, and also against the garnishees, and the garnishees appeal. Reversed.

M. J. Gordon and J. S Whitehouse, for appellants.

Pritchard, Stevens, Grosscup & Seymour, for respondents.

STILES J.

The mere fact that the transcript was two days late in reaching the clerk of this court should not, in our judgment, work a dismissal of the appeal. Nor does there seem to have been any necessity forgiving the original judgment defendant notice of the appeal. It was not a party to the garnishment order decree, or judgment, and was not mentioned in it, except by incidental reference. And the like remark is true of the North Pacific Insurance Company. Each garnishee stands alone, and is not interested in orders made against others.

In response to the motion to strike the statement of facts, or at least parts of it, because various papers, journal entries, orders, affidavits, etc., are mingled together, when they clearly ought to have been separated, or that part should constitute the transcript and part the statement, we can only enter a denial, since the whole thing seems to have been certified by both the judge and the clerk, both as statement and as transcript. In this instance the arrangement adopted is not amiss, since the chronological order of the case is well preserved. The motion is also based upon the statement that the original, and not a copy, of the statement of facts has been sent up. The only evidence of the delinquency which appears is that the judge's signature is evidently an original and not a copy; but the clerk certifies that the statement here is a copy, and he includes it in his transcript as the statute requires. Again, counsel say that they were not notified of the time and place of settling the statement of facts; but the judge certifies that the statement was settled and certified "in the presence of the attorneys of the respective parties," which concludes the matter.

The appellants here are the St. Paul German Insurance Company and the Hekla Fire Insurance Company. The respondents were citizens and residents of the state of Oregon, and had a claim for goods sold against the Coeur d'Alene Clothing Company, of Wallace, Idaho, which they sued upon in the superior court of Pierce county, August 1, 1890. On the same day the respondents caused a writ of attachment to be issued against the Coeur d'Alene Clothing Company, as a foreign corporation. Appellants were foreign fire insurance corporations, doing business regularly in Washington, with a statutory attorney resident at Tacoma. The sheriff of Spokane county served garnishment notices upon appellants' soliciting agent at Spokane, intending thereby to secure the claim of respondents upon insurance money due or about to become due from appellants to the Coeur d'Alene Clothing Company, which had recently sustained a loss by fire. These notices were served August 5, 1890, and the agent returned $1,000 as claimed from each of the appellants by the insured, "subject to our adjustment." On the 1st day of August, 1890, the sheriff of Pierce county attempted to make service of notices of garnishment under the same writ of attachment upon the attorney of the appellants, residing at Tacoma, under Gen St. § 2722. ^[1] But the attorney was absent from the state, and the notices were left with a third person in his office. On the 3d day of October, 1890, the attorney addressed a letter to the sheriff of Pierce county, referring to the notice of garnishment served on him August 1st, and to the policies for $1,000 each, and added: "This amount is retained in my hands subject to the order of the court, but does not become due until October 29th." On the 11th of December, 1890, the court rendered...