Hill v. Gardner

• Decision Date: 03 August 1904
• Citation: 77 P. 808,35 Wash. 529
• Parties: HILL v. GARDNER, Sheriff, et al.
• Court: Washington Supreme Court

77 P. 808

35 Wash. 529

HILL v. GARDNER, Sheriff, et al.

Supreme Court of Washington

August 3, 1904

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

Action by Eliza A. Hill against J. H. Gardner, sheriff, and another. From a judgment for defendants, plaintiff appeals. Reversed.

Martin & Grant, for appellant.

Myers &amp Warren, for respondents.

HADLEY J.

hThis is an action to compel the delivery of personal property levied upon by the sheriff. The appellant, Eliza A Hill, is the claimant. In pursuance of section 5262 Ballinger's Ann. Codes & St., she filed an affidavit which alleges that the respondent Parrish commenced an action against E. Hill, and caused a writ of attachment to issue therein, which writ was delivered to respondent Gardner, as sheriff, and that the latter was directed to immediately levy upon the property of said E. Hill; that under said writ of attachment said sheriff levied upon and took possession of four horses, which are described in the affidavit; that said property was and is the sole and separate property of said Eliza A. Hill, and that no one else had or has any right to the possession thereof; that said E. Hill had neither any interest therein, nor right of possession thereto. The value of the property is laid at $300, and it is alleged that a demand was made upon the sheriff and said Parrish for its delivery to said claimant, which was refused. The claimant Eliza A. Hill, is the wife of said E. Hill. The cause was tried before the court without a jury, and resulted in a finding by the court that the property was the community property of the husband and wife, and judgment was entered against the claimant, from which she has appealed.

Respondents moved to dismiss the appeal for the alleged reason that the notice of appeal was not served upon the sureties upon the redelivery bond. The record shows a service purporting to have been acknowledged in writing by the sureties themselves. Their signatures to the acceptance of service are witnessed by the signature of H. N. Martin, an attorney of this court, and the counsel for appellant. We also find in the record an affidavit of said Martin showing due service made by him upon the bondsmen. The service is sufficiently shown, and the motion to dismiss the appeal is denied.

It is argued that the court erred in finding that the property levied upon was at the time of the levy the community property of appellant and her husband, and was not the separate property of appellant. The only witnesses offered in behalf of appellant upon the question of ownership were her son and husband. The former simply testified in a general way that he had always understood that the horses belonged to his mother, and that he had always heard them referred to in the family as her property. The husband testified that near 30 years ago the appellant received about $1,000 from her father, and that she has since kept that money separately invested. He undertook to trace the investment of the money down to and including the horses in question; following it through a number of investments, sales, and reinvestments. At the close of the testimony for appellant, respondents moved for a nonsuit upon the ground that appellant had failed to show that the property belonged to her separately. The motion was denied, and respondents introduced no evidence. The case was then argued, and the court announced that the matter would be taken under advisement. The court must have changed its mind as to the force of the testimony after the ruling upon the motion for nonsuit, as no further evidence was introduced. The argument of counsel however, followed that ruling; and doubtless features of the testimony, cross-examination of witnesses, and circumstances were analyzed and emphasized by the argument to the extent that the court felt impelled to find for respondents as aforesaid. Appellant complains that the court reversed its own ruling upon the motion for a nonsuit. We think, under the circumstances, that it had a right to further consider the evidence and enter its findings thereon. No order or judgment had been entered upon the motion for nonsuit. These was simply a hasty oral announcement that the motion would be denied. The testimony of the husband is not wholly consistent, even upon his theory, and we are not prepared to say that the court, who saw and heard him testify, observing his manner, was not justified in disbelieving him. A further circumstance is shown by the record which we think the court had a right to consider along with the spoken testimony and other circumstances. The appellant herself sat in the courtroom during the examination of her son and husband, but she did not offer herself as a witness. It seems almost...