Downey v. Wilbur

• Decision Date: 28 May 1921
• Docket Number: 16475.
• Court: Washington Supreme Court
• Parties: DOWNEY v. WILBUR et ux.

198 P. 268

116 Wash. 51

DOWNEY v. WILBUR et ux.

No. 16475.

Supreme Court of Washington

May 28, 1921

Department 1.

Appeal from Superior Court, Pierce County; Wm. Daskren, Judge.

Action by James H. Downey against R. A. Wilbur and wife, resulting in judgment for plaintiff, on which writ of execution issued the sheriff levying on property on which defendants resided and advertising it for sale, and defendants filing statutory declaration of homestead and commencing proceedings for order setting the property aside as exempt from levy and sale. From order setting the property aside as a homestead, etc plaintiff appeals, and defendants move to dismiss the appeal. Motion to dismiss appeal denied.

Fayette J. Partridge, of Tacoma, for appellant.

Kelly &amp MacMahon, of Tacoma, for respondents.

MITCHELL J.

James Downey sued and recovered judgment against R. A. Wilbur and wife in a justice of the peace court in the sum of $55.82. He then filed a duly certified transcript from the docket of the justice of the peace in the county clerk's office, upon which the clerk issued a writ of execution. The sheriff made a levy upon the property in which Wilbur and wife resided and advertised it for sale. Prior to the date fixed for the sale R. A. Wilbur filed in the office of the county auditor his duly acknowledged statutory declaration of homestead of the property advertised to be sold, and at once commenced proceedings in the superior court for an order setting the property aside as exempt from levy and sale. He alleged its value to be not exceeing $1,000. This proceeding was contested by the judgment creditor, and upon a trial the court entered an order setting the property aside as a homestead, declaring it free from the execution and enjoining the sheriff from selling it. James Downey has taken an appeal from that order.

Wilbur and wife have moved to dismiss the appeal upon the ground that this court is without jurisdiction to hear it. The argument is that the original amount in controversy, $55.82 is insufficient to give this court jurisdiction under article 4, § 4, of the Constitution. In our opinion the position is untenable. The thing in controversy in this appeal is real property, according to the order and judgment of the superior court, and which respondents allege to be of the value of $1,000. It is an appeal not by Wilbur and wife, directly or indirectly, from the money judgment against them, but by Downey from a final judgment made in favor of...