Everett Produce Co. v. Smith Bros.

• Decision Date: 25 November 1905
• Citation: 40 Wash. 566,82 P. 905
• Parties: EVERETT PRODUCE CO. v. SMITH BROS. (GOERIG, Garnishee.
• Court: Washington Supreme Court

82 P. 905

40 Wash. 566

EVERETT PRODUCE CO. v. SMITH BROS. (GOERIG, Garnishee.

Supreme Court of Washington

November 25, 1905

Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Action by the Everett Produce Company against Smith Bros., in which A. C. Goerig was served as garnishee. From a judgment in favor of the garnishee, plaintiff appeals. Affirmed.

William Sheller, for appellant.

Bell &amp Austin, for respondent.

DUNBAR J.

On the 12th day of May, 1903, the appellant recovered judgment in the superior court of Snohomish county against the defendants, Smith Bros., for the sum of $449. On the same day it made affidavit for a writ of garnishment against A. C Goerig, the respondent garnishee in this case. Goerig failed to make any appearance or answer to the writ; default was taken, and judgment rendered against him on the 4th day of June, 1903. On the 16th day of June, 1903, the garnishee respondent served upon appellant a notice of hearing a motion to set aside the judgment obtained against him, and an affidavit in support of said motion. On the 27th day of June, 1903, the court vacated the judgment against the garnishee, and on the 30th day of June his answer as garnishee in the aforesaid matter was filed. Upon the trial the court found, among other things which are irrelevant to this investigation, that during the year 1902 Smith Bros., the abovenamed defendants, owned and operated a livery, feed, and boarding stable in the city of Everett Wash., and became indebted to the plaintiff, appellant here in the sum of $432.49, for goods, wares, and merchandise sold and furnished to said Smith Bros. and used in running and operating said livery barn, and thereafter the said plaintiff procured a judgment for said sum against the said Smith Bros., who at the time of the procurement of said judgment were insolvent and unable to pay the same; that on or about the 12th day of December, 1902, Goerig loaned to the said Smith Bros. the sum of $290; that at said date there was a chattel mortgage upon all the property owned and used by the said Smith Bros. for the sum of $362.50, which was a first and valid lien upon said property; that on or about the 6th day of January, 1903, said Smith Bros., being unable to pay said Goerig the said sum of $290 and to discharge the said chattel mortgage of $362.50, made a bill of sale of all of said livery stock and property to the said Goerig for the consideration of the said $290 theretofore loaned to the said Smith Bros. by Goerig, and his assumption and agreement to pay the said chattel mortgage of $382.50, and the interest thereon; and, under and by virtue of said bill of sale, the said Goerig took possession and became the owner of said livery barns and stock; that after the execution of said bill of sale to Smith Bros., the plaintiff caused a writ of garnishment to be issued by virtue of said judgment, in their favor and against Smith Bros., and caused the said Goerig to be garnished, and that issues were made upon said garnishment and this trial had; that said property so turned over to said Goerig was of no greater value than $700; that Goerig at the time of receiving the said bill of sale from Smith Bros., did not cause the said Smith Bros. or either of them to make an affidavit as to the names and the amounts due their creditors, as provided by Sess. Laws 1901, p. 222, c. 109. As conclusions of law the court found that the respondent, Goerig, was entitled to be dismissed out of the action (1) because he was not a purchaser of the business of Smith Bros. within the sales in bulk law, and (2) because he was at the time of the giving of the bill of sale a mere creditor of the said firm of Smith Bros. and that the garnishee defendant was entitled to a judgment for his costs in this action. Certain findings of fact and conclusions of law were proposed by the appellant, which the court refused to find. From this judgment, this appeal is taken.

The first error assigned is that the court erred in ordering a directed judgment rendered against the garnishee to be vacated and set aside. Without reviewing the showing made by the garnishee defendant in this case, we are satisfied that the court acted well within its...