Horrell v. California, Oregon & Washington Homebuilders' Ass'n

Citation82 P. 889,40 Wash. 531
CourtUnited States State Supreme Court of Washington
Decision Date22 November 1905
PartiesHORRELL v. CALIFORNIA, OREGON & WASHINGTON HOMEBUILDERS' ASS'N.

Appeal from Superior Court, King County; Mitchel Gilliam, Judge.

Action by F. O. Horrell against the California, Oregon & Washington Homebuilders' Association. From a judgment for plaintiff defendant appeals. Reversed.

F. R Burch and Harold Preston, for appellant.

F. C. Kapp, for respondent.

RUDKIN J.

On or about the 1st day of July, 1902, the plaintiff was the owner of three contracts in the Western Home Building Association a corporation organized and existing under the laws of this state, by the terms of which he agreed to pay said association the sum of $2.50 per month on each contract. The general plan on which the business of the association was conducted is not material on this appeal. On the above date the plaintiff entered into an agreement with the defendant herein, whereby the plaintiff accepted three contracts in the defendant association of like character in lieu of the three contracts in the former association and was given credit on said new contracts for the sum of $52.50 paid on the old contracts in the former association. The plaintiff paid the transfer fee and the monthly installments on the new contracts for the months of July, August, September, and October, 1902, amounting in all to the sum of $36; but no further installments were paid. On or about the 21st day of October, 1903, the defendant notified the plaintiff that the three last-mentioned contracts still stood in his name, and that he was the owner thereof; that there were back dues for 13 months unpaid thereon; that the original contracts could not be found; and that if the plaintiff desired to pay such back dues, copies of the original contracts would be forwarded to him. In addition to the foregoing facts, the amended complaint alleged that the defendant falsely and fraudulently represented to the plaintiff that the said Western Home Building Association was insolvent and would not be able to mature plaintiff's said contracts; that the defendant was perfectly solvent, and would be able to mature the same; that the defendant was duly authorized to do business in the state of Washington, and that the plaintiff would be protected by the laws thereof; that the falsity of said representations were known to the defendant and unknown to the plaintiff; and that the defendant never intended to perform said contracts, but induced the plaintiff to make such exchange for the purpose of defrauding him, and depriving him of his rights and property by means of a transfer of said contracts to a foreign corporation, which had not and could not comply with the laws of this state. The prayer of the amended complaint was for a decree canceling and annulling said contracts, and for the recovery of the $88.50 paid thereon. The court below found, among other things, that the defendant was a corporation organized and existing under the laws of the state of California, with power to do a saving and loan and investment business on the building society plan, and that said corporation had not complied with the laws of this state relating to foreign building and loan associations; but the court found against the plaintiff on the questions of fraud as above set forth. As conclusion of law the court found that the three contracts were null and void and of no force or effect. On these findings a decree was entered, declaring the contracts null and void and awarding the plaintiff a personal judgment against the defendant in the sum of $82.50, being the aggregate of the several amounts paid thereon. The defendant thereafter gave notice of appeal to this court, and filed a bond, conditioned both as a cost and supersedeas bond, in the sum of $750.

The respondent moves to dismiss the appeal on three grounds: (1) Because the amount in controversy is less than $200; (2) because no sufficient appeal bond was given or filed; and (3) because the notice of appeal is defective and insufficient. The constitutional provision limiting the appellate jurisdiction of this court to civil actions at law for the recovery of money, where the original amount in controversy exceeds $200, has no application to causes of equitable cognizance, and the jurisdictional question is determined from the nature of the action, as disclosed by the pleadings and not from the form or amount of the judgment. This action was brought to cancel certain contracts, executed without authority and procured by fraud. Such an action is of equitable cognizance and within the appellate jurisdiction of this court, regardless of the form of the judgment or the amount in controversy. In support of the second ground it is contended that the court below fixed the amount of the supersedeas bond in the sum of $750, and that a bond in that sum, conditioned as both a cost and supersedeas bond, is insufficient. While the decree anulled certain contracts, in addition to the award of a personal judgment, yet that portion of the decree annulling the contracts was self-executing, and could not be superseded. The only part of the judgment that could be superseded or stayed...

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28 cases
  • Gould Land and Cattle Company v. The Rocky Mountain Bell Telephone Company
    • United States
    • Wyoming Supreme Court
    • May 29, 1909
    ...F. 545; Chattanooga etc. v. Evans, 66 F. 809; Jarvis-Conklin v. Willhoit, 84 F. 514; Gallenlet v. Strickland, 74 S.C. 394; Horell v. Homebuilders &c., 40 Wash. 531; Co. v. Leschen & Co., (Colo.) 92 P. 727; Bank v. Whitney, 104 U.S. 99; Fritts v. Palmer, 132 U.S. 282; Smith v. Sheeley, 12 Wa......
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    • April 28, 1941
    ... ... works of the state of Washington, and of any county thereof, ... honorably ... 142, 37 P. 287, 38 P. 80; ... Horrell v. California, etc., Ass'n, 40 Wash ... ...
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