Floding v. Denholm

• Decision Date: 10 November 1905
• Citation: Floding v. Denholm, 40 Wash. 463, 82 P. 738 (Wash. 1905)
• Parties: FLODING et ux. v. DENHOLM, Sheriff.
• Court: Washington Supreme Court

82 P. 738

40 Wash. 463

FLODING et ux. v. DENHOLM, Sheriff.

Supreme Court of Washington

November 10, 1905

Appeal from Superior Court, Pierce County; Thad Huston, Judge.

Suit by Eric Floding and wife against J. A. Denholm, as sheriff of Pierce county. From a decree in favor of complainants defendant appeals. Reversed.

Fullerton and Hadley, JJ., dissenting.

Jas. J Anderson and H. P. Burdick, for appellant.

A. R Titlow, for respondents.

MOUNT C.J.

In the year 1903 there several judgments were obtained in the superior court of Pierce county against the Washington Match Company, a corporation. The corporation appealed from each of these judgments to this court. A supersedeas bond on appeal was given in each of the cases. Eric Floding, one of the respondents herein, was a surety on each of said supersedeas bonds. All of said judgments were afterwards affirmed by this court, and judgments rendered against the Washington Match Company and the sureties on the appeal and supersedeas bonds. Thereafter executions were issued and levies made upon lots 1 to 11, inclusive, in block 26, Second Amended plat of Hosmer's addition to Tacoma. These lots were advertised for sale by the sheriff of Pierce county when this action was brought to restrain the said sale. Upon the trial of the case it appeared that Eric Floding was a stockholder in the Washington Match Company at the time he became surety upon the supersedeas bond above mentioned; that he owned 1,000 shares of the stock of said corporation, for which he had paid $1,000 from community funds of himself and wife; that stock was purchased against the will of his wife; and that the corporation at the time of the trial was insolvent. After hearing the evidence the trial court rendered a decree enjoining the sheriff from selling the property to satisfy the judgment against Eric Floding. From this decree the sheriff prosecutes this appeal.

Respondents move to strike the statement of facts and dismiss the appeal upon several grounds, all of which are based upon the fact that the appellant's opening brief was served and filed before the statement of facts was settled and certified by the trial court. The condition of the record is as follows: The decree appealed from was rendered on February 23, 1905. It was entered on the next day. Notice of appeal was served on February 27, 1905, and the appeal bond was filed on the same day. The proposed statement of facts was filed and served on March 18, 1905. Within time thereafter respondents served and filed proposed amendments to the proposed statement of facts. The transcript was filed in the superior court and certified on May 22, 1905. The appellant's opening brief was served upon respondents on June 28, 1905. At this time the proposed statement of facts had not been settled or certified by the trial court. On July 25, 1905, before the statement of facts had been settled, respondents served and filed their answer brief, which contained motions to dismiss because the statement of facts had not at that time been settled or certified and no notice to settle the same had been given. Thereafter on July 15, 1905, appellant gave notice to respondents that he would apply to the trial court on the 19th day of July, 1905, to settle and certify the statement of facts. On July 19th the settlement of the statement of facts was continued until the 25th of the same month, and respondents were served with notice thereof. On the 25th of July, 1905, the court settled the proposed statement of facts, and incorporated therein all the amendments proposed by respondents. It will be readily seen that the only imperfection in the record was the failure of the appellant to notice the proposed statement of facts for settlement prior to the time of filing his opening brief. The statute (section 5058, 2 Ballinger's Ann. Codes & St.) fixes no time within which a proposed statement of facts must be settled and certified, or within which notice of the settlement must be given. Dodds v. Gregson, 35 Wash. 402-407, 77 P. 791. It simply provides that after amendments have been proposed to the statement 'either party may then serve upon the other a written notice that he will apply to the judge of the court before whom the case is pending or was tried * * * to settle and certify the bill or statement.' The burden is, no doubt, upon the appellant to perfect his statement of facts, and he must act within a reasonable time, or be held to have abandoned his appeal. In this case all the steps, except the notice to settle the proposed statement, were taken promptly and within time, indicating that there was no abandonment or intention on the part of the appellant to abandon the appeal. Under these circumstances we think we should not dismiss the appeal. The motion is therefore denied.

Upon the merits of the case there is but one question, viz.: Is community real estate liable for a...