Gehres v. Orlowski

• Decision Date: 12 December 1904
• Citation: 78 P. 792,36 Wash. 156
• Parties: GEHRES et al. v. ORLOWSKI.
• Court: Washington Supreme Court

78 P. 792

36 Wash. 156

GEHRES et al. v. ORLOWSKI.

Supreme Court of Washington

December 12, 1904

Appeal from Superior Court, Lincoln County; C. H. Neal, Judge.

Action on a note by F. J. Gehres and another, as copartners doing business under the firm name and style of Gehres & Hertrich against Julius Orlowski and another. From a judgment for plaintiffs, Orlowski appeals. Affirmed.

Myers &amp Warren, for appellant.

G. M Ryker and Martin & Grant, for respondents.

DUNBAR J.

This is an action upon a promissory note, brought by the respondents against the appellant and co-obligor. Attachment was issued at the time of the commencement thereof. Appellant moved to discharge the attachment, and also demurred to the complaint. The motion to discharge the attachment, as well as the demurrer, was overruled and denied by the court. Thereupon appellant duly excepted, announced in open court that he would stand upon his demurrer, and refused to further plead. Judgment was thereupon rendered against appellant, and from the order overruling the discharge of the attachment and the judgment in this case this appeal is taken.

The assignments of error are that the court erred in refusing to discharge the attachment, in overruling the demurrer to the complaint, and in rendering the final judgment which it did render. From an investigation of the record we are not inclined to interfere with the discretion of the court in refusing to dissolve the attachment. The contention on the demurrer is that the statute of limitations had run against the note. It is conceded that, if the payments upon the note did not arrest the statute of limitations, the action was not commenced in time. After setting forth the note, signed Julius Orlowski and Marie H. Orlowski, the complaint proceeds: 'That said note is now in the possession and owned by the said Gehres & Hertrich, as such copartners [Gehres & Hertrich being the plaintiffs in the case]. (3) That there has been nothing paid on said note except as follows [setting forth the payments in order of their dates].' It is contended by the appellant that under the doctrine announced by this court in Stubblefield v McAuliff, 20 Wash. 442, 55 P. 637, and Bassett v Thrall, 21 Wash. 231, 57 P. 806, the complaint not alleging that the appellant ever made any payments, as to him the note is barred. It is true that in Stubblefield v. McAuliff, supra, it was held that, where a note secured by a mortgage of community realty has been executed by a man and wife, payments of principal or interest thereon made by the husband without the authority of the wife, after maturity, will not extend the time of the running of the statute of limitations as against her. But in that case there was no question of pleadings involved. The fact was admitted that the payments were made only by the husband, part of which were made after the wife's death. And that was the principle which was followed in the subsequent case of Bassett v. Thrall, supra. But appellant seems to rest securely upon the announcement by this court in Perkins v. Jennings, 27 Wash. 145, 67 P. 590, in which case the note was signed by two parties (Jennings and Schnurr), that: 'In the absence of an averment that Schnurr did authorize the payment, and that he participated therein as his own act, the complaint must be held insufficient as to him.' This portion of the opinion, segregated from the general opinion, would undoubtedly bear out appellant's contention. But the language quoted in appellant's...