Flood v. Libby

• Decision Date: 17 April 1905
• Citation: 80 P. 533,38 Wash. 366
• Court: Washington Supreme Court
• Parties: FLOOD v. LIBBY et ux.

80 P. 533

38 Wash. 366

FLOOD v. LIBBY et ux.

Supreme Court of Washington

April 17, 1905

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Jennie Flood against Isaac C. Libby and wife, in which judgment was rendered against defendants, and plaintiff commenced a proceeding supplementary to execution, and procured a citation requiring defendants to appear and answer concerning their property, and an injunction restraining defendants from disposing of their property; from which orders defendants appeal. Modified.

Eugene Miller, for appellants.

Mark F Mendenhall, for respondent.

HADLEY, J.

This appeal arises out of a proceeding supplementary to execution. A motion was filed in the original cause, calling for the issuance of a citation requiring the judgment defendants to appear and answer under oath concerning their property that may be applied to the payment of the judgment, and also asking for an order restraining them from secreting or in any manner disposing of their property. The motion was supported by affidavit, which recited that a judgment for $1,822.25 was duly docketed in the cause, upon which execution was issued and that it had been returned unsatisfied. The affidavit further states that the judgment debtors have property which they unjustly refuse to apply towards the satisfaction of the judgment; that both of the defendants are drawing large salaries as teachers in the high school of the city of Spokane, all of which salaries are not exempt from execution; that the defendants own and hold life insurance policies which have large cash withdrawal values, and that they have interests in real estate, the exact nature of which is unknown to the plaintiff; that the defendants refuse to apply any of their property, credits, or cash towards the satisfaction of the judgment; and that plaintiff believes they will secrete and dispose of their property if they should be advised of this application. Upon the filing of the motion and affidavit, the court issued a citation, and restrained the defendants from in any manner disposing of their interests, whether in joint, separate, or community property, until the further order of the court. The defendants moved to set aside the citation and restraining order, upon the alleged ground that the affidavit did not disclose sufficient facts to authorize their issuance. The motion was denied, testimony was thereafter heard, and the court entered an order in which it was found that the defendants have property which they unjustly withhold from the payment of plaintiff's judgment, and that a receiver should be appointed to take possession of such of defendants' property as is not exempt from execution. A receiver was appointed, and he was directed to take possession of defendants' property, sell such thereof as is not by law exempt from sale and execution, and apply the proceeds to the satisfaction of the judgment. The order also directed the defendants to deliver to the receiver 'all life insurance policies, books of account, title deeds savings banks deposit books, or other vouchers or instruments representing or evidencing money or credits due to said defendants or either of them, owned or in the possession or control of the said defendants or either of them.' The order also restrained the defendants from in any manner disposing of their property. The defendants have appealed from the order.

It is assigned that the court erred in issuing the citation and restraining order, and in denying appellants' motion to set them aside. This claim of error is based upon the ground that the affidavit was insufficient to give the court jurisdiction to act in the premises. It is contended that this is an independent proceeding, distinct from the original action, and the all facts necessary to give the court jurisdiction should appear upon the face of the affidavit. The affidavit does not disclose the date of the judgment, and it is contended that it may have been entered at any time from six to seven years prior to the filing of the affidavit. The affidavit does not show the date of the issuance of the execution or of its return unsatisfied, and it is urged that, so far as appears in the affidavit, the judgment may have been paid years before the making of the affidavit. It states, however, that the judgment 'is duly docketed in said cause and court,' and it is made sufficiently clear that the judgment is unpaid. This is not an independent proceeding, but is merely auxiliary to the original action and a continuation thereof. Murne v. Schwabacher Bros. & Co., 2 Wash. T. 130, 3 P. 899; Gield v. Greiner, 11 Wash. 8, 39 P. 259. The court therefore, took judicial knowledge of the entire record. A supplemental transcript filed here shows that the judgment was entered November 23, 1903, that execution was issued the same day, and was returned two days latter with the certificate of the sheriff that the appellants refused to satisfy the judgment, and that he had made diligent search but failed to find any property with which to satisfy the execution. Fifteen days later the affidavit was filed. There were sufficient facts disclosed by the affidavit and record to give the court jurisdiction to issue the citation and restraining order.

The appellants are husband and wife, and are both employed as teachers in the high school of Spokane. A subject much discussed by respondent is that the salaries of both cannot be exempt from seizure under the terms of section 5336, 2 Ballinger's Ann. Codes & St., which exempts 'the earnings of the judgment debtor for his personal services rendered within sixty days next before the institution of the special proceedings.' We do not understand that the trial court held any portion of the salaries to be subject to seizure. The order entered by the court says nothing expressly upon that subject. At the time the testimony was taken, the court expressed the view that the salaries cannot be seized, for the reason that they accrue to appellants as the obligations of a municipal corporation, and that their seizure would in effect amount to a garnishment of the municipality. We therefore apprehend that the court did not intend the order subsequently entered to reach the salaries. It is possible, however, that the following words in the court's order, 'or other vouchers or instruments representing or evidencing money or credits due to said defendants or either of them,' may support the contention that they are broad enough to include school warrants. While as we have said, we do not believe the court so intended the language, yet in view of the respondent's argument, it is proper that we should now say that, if such was the intention, we think school warrants and salaries should be excepted from the operation of the order, for the reason that their seizure would in...