Earley v. Rooney
| Decision Date | 03 July 1956 |
| Docket Number | No. 33594,33594 |
| Citation | 299 P.2d 209,49 Wn.2d 222 |
| Court | Washington Supreme Court |
| Parties | Roy T. EARLEY, Appellant, v. Isobel H. ROONEY, individually and as executrix of the estate of Melvin C. Rooney, deceased, and Ina Yelton, Respondents. |
Henderson, Carnahan, Thompson & Gordon, Tacoma, for appellant.
George W. Sibbald, Kelso, James O. Ballou, Longview, for respondents.
This action was brought to recover the sum of $7,599, which the plaintiff alleged he was required to pay as a result of a fraud practiced upon the superior court of Cowlitz county by the defendant Yelton, through her attorney Melvin C. Rooney, who acted in behalf of the marital community composed of himself and his wife, Isobel H. Rooney. After the institution of the suit, the defendant Melvin C. Rooney died; and his executrix, Isobel H. Rooney, was substituted as defendant representing his estate. The defendant Isobel H. Rooney will be referred to herein as the executrix, Melvin C. Rooney as the decedent, and Ina Yelton as the defendant.
According to the findings of fact, which are not questioned on appeal, on January 8, 1947, the defendant obtained a judgment against one George Haley and wife in the sum of $8,362.46, with interest and costs. In the superior court of Cowlitz county, she secured a writ of garnishment and served it on the plaintiff, who answered that he was indebted to Haley in the amount of $4,381.50, but that Haley had made an assignment for the benefit of creditors to the Portland Association of Credit Men and Louis Schaefer, an attorney, and the plaintiff was in doubt as to whom payment should be made. He paid into the registry of the court the amount admittedly due. The assignment for the benefit of creditors had figured prominently in the suit brought by the defendant against Haley.
On May 23, 1947, the decedent prepared and filed a motion for judgment on the garnishment. At the instance of the decedent, a judge of the superior court signed and filed an order denominated 'Judgment on Answer of Garnishee Defendant.' The order provided that the plaintiff should recover the sum of $25 attorney's fees and should be released from all further liability to George Haley and/or Avis Haley, his wife, or to their assignees. The clerk was directed to pay the remainder of the sum to the decedent as attorney for the defendant.
The assignees were given no notice of the garnishment proceedings, and neither they nor the plaintiff were served with the motion or order nor given any notice of the hearing on this motion. A copy of the order was mailed to the plaintiff's attorney before May 29, 1947. On May 23, 1947, the decedent, acting on behalf of the defendant, satisfied the execution docket to the amount of $4,356.50, and received payment of this amount. On May 29, 1947, the plaintiff's attorney satisfied the execution docket in the amount of $25 and received payment. The decedent received, as attorney's fees, one third of the amount paid to the defendant.
On August 29, 1947, the plaintiff voluntarily paid into court the further sum of $46.26, which was ordered paid to the defendant and was drawn down by the decedent and defendant on May 29, 1952, and retained by them.
On June 9, 1947, the assignees filed a complaint in intervention in the suit between the defendant and Haley. The decedent demurred thereto on behalf of the defendant, and the demurrer was sustained in March, 1951.
In April 1950, the assignees instituted an action in the Pierce county superior court against the plaintiff to recover the identical amount due George Haley and wife, which (with the exception of the $25 attorney's fee) had been paid to the defendant and decedent. This suit on appeal eventuated in a judgment against the plaintiff for this amount, plus interest from the date the money was paid and costs. See Portland Ass'n of Credit Men, Inc. v. Earley, 42 Wash.2d 273, 254 P.2d 758. On June 8, 1953, the plaintiff was compelled to pay the sum of $6,402.24 in full satisfaction of the judgment, including costs.
Summons and complaint in the present action were filed with the clerk of the court at Kelso, Washington, on April 24, 1953; personal service of process was obtained against the decedent and the executrix on April 28, 1953, and against the defendant on October 5, 1953.
The trial court concluded that the judgment or order in garnishment of May 23, 1947, was not obtained by fraud; that the action was for money had and received, and that as to the original sum of $4,381.50 paid into court by the plaintiff, the cause of action for its recovery was barred by the statute of limitations. Judgment was entered for the plaintiff in the amount of $46.26, with interest at the rate of six per cent per annum from May 29, 1952, and costs. The plaintiff has appealed from that portion of the judgment which denied recovery of the amount which was withdrawn by the defendant and the decedent on May 29, 1947, contending that the statute of limitations began to run when he paid the judgment obtained against him by the assignees.
In Portland Ass'n of Credit Men v. Earley, supra, this court held that the defendant (the plaintiff in this action) was not protected by the provisions of Rem.Rev.Stat. §§ 693 to 696, RCW 7.32.180-7.32.210, because, having paid the money owed by him into court before judgment was entered, he could not show that the indebtedness was paid 'under the judgment of the court.' It was pointed out that in order to protect himself from a subsequent suit by the assignees, of whose claim he had notice, the plaintiff should have interpleaded the assignees, under the provisions of Rem.Rev.Stat. §§ 198 to 200, RCW 4.08.150-4.08.170.
The executrix (the only defendant filing a brief in this appeal) characterizes this action as a collateral attack on the judgment rendered in the garnishment proceeding. Upon the trial court's findings, and under the holding of Portland Ass'n of Credit Men v. Earley, supra, (that the money was not paid under the judgment), we cannot accept this view. The plaintiff's right to recover arises out of the equitable doctrine of indemnity. It is no longer questioned that the claim of the assignees, who were not parties to the garnishment proceeding and had no notice thereof, was superior to that of the defendant. In Bellingham Bay Boom Co. v. Brisbois, 14 Wash. 173, 44 P. 153, 154, 46 P. 238, this court said:
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