Farnsworth v. Town of Wilbur

• Decision Date: 11 May 1908
• Citation: 49 Wash. 416,95 P. 642
• Court: Washington Supreme Court
• Parties: FARNSWORTH v. TOWN OF WILBUR et al.

95 P. 642

49 Wash. 416

FARNSWORTH v. TOWN OF WILBUR et al.

Supreme Court of Washington

May 11, 1908

Appeal from Superior Court, Lincoln County; W. T. Warren, Judge.

Action by E. L. Farnsworth against the town of Wilbur and others. Decree for complainant, and defendants appeal. Reversed, with instructions.

E. F Scarborough and Neal, Sessions & Myers, for appellants.

Merritt Hibschman, Oswald & Merritt, for respondent.

FULLERTON, J.

This is an action for injunctive relief. It was tried upon the following agreed statement of facts: '(1) That the town of Wilbur is a municipal corporation of the state of Washington, organized and existing as a city of the fourth class under and by virtue of the laws of the said state relative to municipal corporations.

'(2) That the defendants L. Lewis, W. W. Howells, F. T. Bump, W J. Browne, and James A. Muir are the duly elected, qualified and acting members of the town council of the town of Wilbur.

'(3) That the defendant Peder Faldborg is the duly elected qualified, and acting town treasurer of said town of Wilbur.

'(4) That on or about the 13th day of March, 1906, judgment was entered by the superior court of the state of Washington in and for the county of Lincoln, in an action wherein the defendant the town of Wilbur was the plaintiff, and wherein one J. E. Nave one E. H. Lewis and one C. A. Person were defendants, for the sum of $1,000 and costs, and that thereafter the said J. E. Nave, E. H. Lewis, and C. A. Person duly appealed to the Supreme Court of the state of Washington from the judgment aforesaid. That on the 9th day of October, 1906, the said appeal was by the said Supreme Court dismissed, and that the said judgment was at the time of the dismissal of the appeal a valid, legal, and binding claim against the said J. E. Nave, E. H. Lewis, and C. A. Person to which there was no further defense of any nature, and said judgment still remains a valid, legal, and binding claim against said defendants J. E. Nave, E. H. Lewis, and C. A. Person, unless it has been satisfied, settled, and discharged by reason of the facts hereinafter set forth, and that no part thereof has been paid, except the sum of $290.95, as hereinafter set forth. That an execution has been issued by the clerk of the superior court of the state of Washington for said county upon the judgment aforesaid, and that said execution is now in the hands of the sheriff of Lincoln county for the satisfaction of said judgment.

'(5) That on the 21st day of November, 1906, at a regular meeting of the town council of the town of Wilbur, composed of the defendants L. Lewis, W. W. Howells, F. T. Bump, W. J. Browne, and James A. Muir, a resolution was introduced, seconded, and passed by the said defendants, to the effect that the said judgment should be satisfied and discharged upon the payment by the said defendants in the action wherein the judgment was entered of the costs and expenses therein incurred by the said town of Wilbur, aggregating the sum of $290.95, and that the said town council and the defendants above named as members of the said council then and there agreed with the said J. E. Nave, E. H. Lewis, and C. A. Person to accept from them in full satisfaction of the said judgment as a full discharge of all their liability to the said town of Wilbur under said judgment the sum above referred to and amounting to $290.95, as aforesaid.

'(6) That the said J. E. Nave, E. H. Lewis, and C. A. Person, in pursuance of the resolution of the said town council of the said town of Wilbur, hereinbefore mentioned, paid to the treasurer of said town, and the treasurer accepted from the said defendants, the sum of $200, and the said defendants paid to the clerk of the above-named court the sum of $90.75 in full satisfaction and discharge of the said judgment, and thereafter the treasurer of the said town council of the said town of Wilbur paid the said sum of $200 into the treasury of the said town of Wilbur, which was thereafter used and expended by said town in its usual and ordinary course of business, and that the said town council of the said town of Wilbur has instructed the sheriff of Lincoln county, Wash., not to proceed under the execution placed in his hands referred to in paragraph 5 of the plaintiff's complaint herein.

'(7) That the plaintiff is a resident and taxpayer of the said town of Wilbur, and pays annually to the said town...