Fisher v. Schwabacher Hardware Co.

• Decision Date: 02 January 1920
• Docket Number: 15647.
• Court: Washington Supreme Court
• Parties: FISHER v. SCHWABACHER HARDWARE CO.

186 P. 649

109 Wash. 257

FISHER v. SCHWABACHER HARDWARE CO.

No. 15647.

Supreme Court of Washington

January 2, 1920

Department 1.

Appeal from Superior Court, King County.

Action by W. H. Fisher against the Seattle Trust Company Schwabacher Hardware Company, and others. From judgment rendered, the last-named defendant appeals. On application by first-named defendant for order requiring plaintiff to deposit the sum paid him by such defendant pursuant to the judgment. Application denied.

M. H Van Nuys, of Seattle, for appellant.

Wright Kelleher, Allen & Hilen, of Seattle, for respondent.

MITCHELL J.

The Seattle Trust Company admittedly held in trust the legal title to certain real estate in King county, Wash., for the benefit of certain judgment creditors of Benjamin Moyses and others. W. H. Fisher, one of these creditors, instituted an action in the superior court of King county against the trustee, and other creditors and parties in interest, to have the real estate sold and the proceeds divided. Such proceedings were had that the property was sold, and thereupon, among others, Fisher, the Seattle Trust Company, and Schwabacher Hardware Company each appearing by his attorney of record, a decree was entered on July 29, 1919, dividing the fund of $5,163.93 by adjudging that the plaintiff, Fisher, have and recover from the Seattle Trust Company the sum of $5,006.31, and that the defendant Schwabacher Hardware Company have and recover of the Seattle Trust Company the sum of $157.62. On the next day, July 30, 1919, the Seattle Trust Company, in good faith and in obedience to the judgment, paid W. H. Fisher said sum of $5,006.31, and mailed its check for $157.62 to Schwabacher Hardware Company. Thereafter, in the month of October, Schwabacher Hardware Company gave its written notice of appeal from the judgment of July 29, 1919, and filed the same, together with an appeal and supersedeas bond. The appeal has not yet been presented to this court. Promptly the Seattle Trust Company made demand upon Fisher for the return of the money paid to him that it might be held to abide the result of the appeal. The demand was refused; and in this connection it appears that Fisher was himself acting as a trustee for others in making the collection, and that on the day he received the money he at once paid it to the parties entitled to it.

Upon the theory that by the provisions of section 1731, Rem. Code upon giving notice of appeal, and the filing of the bond to render it effectual, this court acquires jurisdiction of the appeal for all necessary purposes, the Seattle Trust Company, by a noticed motion and petition, has applied for an order requiring Fisher to deposit here or in the superior court said sum of $5, 006.31, to be held subject to the result of the appeal. No objection seems to have been made by any one to the form of the judgment entered in the superior court in that in legal effect it justified the Seattle Trust Company to at once pay the amounts ordered to be paid or at its own risk suffer an execution against it. Any party...