Hodgson v. Bicknell, 402-37

• Decision Date: 21 June 1956
• Docket Number: No. 402-37,No. 33456,402-37,33456
• Parties: George HODGSON, Respondent, v. Floyd BICKNELL and Jane Doe Bicknell, husband and wife, and School District, of Prescott, Washington, a municipal corporation, Appellants.
• Court: Washington Supreme Court

Page 130

49 Wn.2d 130

298 P.2d 844

George HODGSON, Respondent, v. Floyd BICKNELL and Jane Doe Bicknell, husband and wife, and School District No. 402-37, of Prescott, Washington, a municipal corporation, Appellants.

No. 33456.

Supreme Court of Washington, Department 1.

June 21, 1956.

Keylor Smith, Arthur L. Hawman and Howard J. Martin, Walla Walla, for appellants.

Thomas F. Kelly, Walla Walla, for respondent.

DONWORTH, Justice.

This is an appeal from a judgment on the pleadings in favor of respondent as judgment creditor against appellant school district No. 402-37, of Prescott, Washington, as garnishee defendant upon a controverted answer of the garnishee defendant entered after hearing by the court.

The principal debtors, Floyd Bicknell and his wife, defendants below, have joined in this appeal and have filed a joint brief with appellant school district No. 402-37, of Prescott, Washington.

For purposes of clarity, we shall hereinafter refer to plaintiff George Hodgson as respondent; defendant Floyd Bicknell as though he were the sole defendant; and garnishee defendant school district No. 402-37 as appellant.

The following resume of facts is taken from the pleadings found in the transcript.

On April 11, 1951, respondent recovered a default judgment in the amount of $1,256.83, with interest, against defendant and his wife. On April 18, 1951, the amount of this judgment was corrected to be $2,261.83, with interest, and entered as of April 11, 1951, nunc pro tunc.

Prior to and during the trial of this action, defendant was employed as a bus driver by appellant under an annual contract. He was to receive for his services during the school year a total of $1350, payable at the rate of $150 per month on the first day of the month next following that for which services were rendered.

On November 17, 1954, respondent caused a writ of garnishment, based upon the 1951 judgment, to be issued and served upon appellant on November 20, 1954. This writ of garnishment was not answered until April 12, 1955, under the circumstances hereinafter related.

On December 23, 1954, defendant filed a voluntary petition in bankruptcy in the United States District Court, Eastern District of Washington, Southern Division. On December 27, 1954, defendant and his wife were adjudicated bankrupts.

Shortly after the service of the writ of garnishment, respondent's attorney conferred with Murray E. Taggart, the then prosecuting attorney for Walla Walla county, who was statutory attorney for the school district. Mr. Taggart had previously been informed by defendant's attorney that his client would file a voluntary petition in bankruptcy shortly. The extent of the discussion between respondent's attorney and Mr. Taggart is in dispute, but respondent states in his reply that Mr. Taggart requested that he

'* * * be advised before any further proceedings were taken by Plaintiff under said writ; that Plaintiff's attorney agreed to so notify, but made no other or further agreement whatsoever; * * *'

The wages due defendant on December 1, 1954, for services performed during the month of November ($135.50), were turned over to the trustee in bankruptcy after his appointment, and he allowed defendant to retain the statutory exemption of $20 per week, or $80. The balance of $55.50 was included as an asset of the bankrupts' estate. After the adjudication of defendant and his wife as bankrupts, defendant was paid his regular monthly wages each month pursuant to his contract with appellant through April 1, 1955. On this date, respondent's attorney contacted Arthur L. Hawman, the newly elected prosecuting attorney for Walla Walla county, and inquired as to whether or not he intended to answer the writ of garnishment. An answer was thereupon filed and served upon respondent on April 12, 1955.

Appellant's answer admitted the service of the writ of garnishment on November 20, 1954, and alleged: (1) Payment of defendant's regular monthly wages under the contract; (2) the adjudication of bankruptcy of defendant in December, 1954; (3) an oral arrangement between the parties whereby defendant was allowed his statutory exemption of $20 per week, and that the trustee in bankruptcy was paid the balance of defendant's November wages; (4) an oral agreement with respondent's attorney that the latter would notify appellant before taking any further action in the garnishment matter; (5) that the issuance and service of the writ of garnishment was a preference under the bankruptcy laws; (6) that appellant was not indebted to defendant in any sum whatever, except pursuant to the provisions of the contract; and prayed that appellant be discharged in the garnishment proceedings.

On May 12, 1955, the trial court granted respondent's motion to strike the allegations in appellant's answer relating to the bankruptcy proceeding and the effect thereof, but the court did not strike the allegation relative to the alleged oral agreement, and ordered respondent to reply to appellant's answer.

Respondent's reply of May 16, 1955, admitted the allegations of appellant's answer relating to service of the writ of garnishment, and the existence of the contract between defendant and appellant; alleged that the contract was an annual contract and that all monthly payments accruing thereunder are subject to the writ of garnishment, less the October 1, and November 1, 1954 payments made prior to service of the writ of garnishment; alleged that respondent had no information or belief concerning the truth of the alleged payments of appellant to defendant under the contract through April 1, 1955; admitted service of appellant's answer to the writ of garnishment on April 12, 1955; admitted an oral agreement in paragraph IV, which is set out in full as follows:

'That Plaintiff admits that shortly after the service of said Writ of Garnishment on the 20th day of November, 1954, Murray E. Taggart, the then Prosecuting Attorney for Walla Walla County, communicated with the undersigned attorney for Plaintiff, advising that said Writ had been served upon the Garnishee Defendant School District, and turned over to him as statutory attorney for the School District, and requested that he, Taggart, be advised before any further proceedings were taken by Plaintiff under said Writ; that Plaintiff's attorney agreed to so notify, but made no other or further agreement whatsoever; that no answer to said Writ of Garnishment in any form whatsoever, verbal or otherwise, was made to Plaintiff or his attorney by the said Murray E. Taggart at that or any other time, as required by law; that on or about the 10th day of January, 1955, Arthur L. Hawman became the duly elected, qualified and acting Prosecuting Attorney for Walla Walla County, and attorney for Garnishee Defendant herein; that the undersigned, attorney for Plaintiff, on or about the 1st day of April, 1955, feeling that said agreement to notify concerning said Writ of Garnishment was a continuing agreement with the incumbent of said office in his official capacity, did inquire of the said Arthur L. Hawman if any answer to said Writ of Garnishment was ever intended to be filed, or if Plaintiff should move for a default judgment against Garnishee Defendant; that the undersigned was served with the Answer to Writ of Garnishment herein on the 12th day of April, 1955.' (Italics ours.)

Respondent then prayed for judgment in the sum of $1,072.75.

On May 18, 1955, the trial court denied defendant's motion for an order dissolving and nullifying the writ of garnishment and discharging appellant as garnishee defendant. This motion was supported by defendant's affidavit averring his insolvency for more than four months preceding the bankruptcy proceedings, containing a statement of defendant's assets and liabilities, and the adjudication of bankruptcy on December 27, 1954. However, the trial court denied respondent's motion to strike the motion and affidavit above referred to.

On May 20, 1955, respondent filed a motion for summary judgent, stating as follows:

'Comes now the Plaintiff and moves the Court for Summary Judgment against the Garnishee Defendant herein upon Plaintiff's Writ of Garnishment in this cause. This Motion is made in accordance with Amended Rule 19 of Rules of Pleading, Practice and Procedure, 145 Wash.Dec., No. 23, pp. v, and is based upon the records and files herein.'

On May 23, 1955, defendant filed a motion for stay of proceedings under § 11, sub. a of the Bankruptcy Act, 11 U.S.C.A. § 29, sub. a. The supporting affidavit stated that appellant was withholding defendant's wages for the month of April, 1955, under the writ of garnishment, and threatened to continue to do so. Defendant averred the facts of the bankruptcy, hereinbefore set out, further averring that respondent's judgment was dischargeable in bankruptcy, and that defendant would suffer irreparable damage if the proceedings were not stayed.

On June 6, 1955, the trial court granted respondent's motion for summary judgment and (1) entered judgment for respondent in the sum of $710, which was the total amount paid by appellant to defendant under the contract between the date of service of the writ of garnishment on November 20, 1954, and the date of service of appellant's answer on April 12, 1955; (2)...