House v. Smith's Cashway, Inc.

• Decision Date: 30 June 1931
• Docket Number: Civil 3012
• Citation: 300 P. 951,38 Ariz. 399
• Parties: E. A. HOUSE, Appellant, v. SMITH'S CASHWAY, INC., a Corporation, Appellee
• Court: Arizona Supreme Court

300 P. 951

38 Ariz. 399

E. A. HOUSE, Appellant, v. SMITH'S CASHWAY, INC., a Corporation, Appellee

Civil No. 3012

Supreme Court of Arizona

June 30, 1931

APPEAL from a judgment of the Superior Court of the County of Cochise. Albert M. Sames, Judge. Judgment reversed and cause remanded, with instructions.

Messrs Benshimol & White, for Appellant.

Mr. W G. Gilmore, for Appellee.

OPINION

LOCKWOOD, J.

Smith 's Cashway Grocery Company, a corporation, of which W. E Schwamm was the president, on or about April 1, 1930, owned and operated two grocery-stores in Douglas, Arizona, one of them being located at 1501 G avenue in said city. This store was operated under the name of "Smith's Cashway No 2." On April 1, 1930, one H. A. House filed a complaint which was entitled "H. A. House, Plaintiff, vs. Smith's Cashway, Inc., a corporation, Defendant." The complaint alleged "that the defendant herein, Smith's Cashway, Inc., is a corporation existing under and by virtue of the laws of the State of Arizona, . . . " and then proceeded to set up a cause of action against said defendant for money loaned. A writ of attachment in said case was duly sued out and levied by the sheriff on the property described in the return of the writ as "all the merchandise and fixtures of Smith's Cashway, Inc., at 1501 G Avenue, Douglas, Arizona," and summons and copy of the complaint were properly served on W. E. Schwamm.

On the next day after the levy, the following bond was filed:

"In the Superior Court of Cochise County, State of Arizona. H. A. House, Plaintiff, vs. Smith's Cashway, Inc., Defendant. Bond on Release of Attachment.

"Whereas the above named plaintiff commenced an action in the Superior Court of Cochise County, State of Arizona, against the above named defendant, claiming that there was due to said plaintiff from said defendant the sum of Three Thousand Four Hundred One and 02/100 Dollars ($3401.02), and thereupon, upon the application of the plaintiff, an attachment was issued out of said Court against the property of said defendant, and certain property and effects of said defendant have been attached and seized by the Sheriff of said county under and by virtue of said writ; and

"Whereas, the said defendant desires to have said property released from said attachment;

" Now, therefore, we, the undersigned, Smith's Cashway, Inc., as principal, and W. E. Schwamm and S. P. Applewhite, as sureties, acknowledge ourselves bound to pay to the above named plaintiff the sum of Six Thousand Eight Hundred Two and 04/100 dollars ($6802.04), being double the amount of plaintiff's debt, conditioned that, on the release from said attachment of said property, if the plaintiff recover judgment in the aforesaid action, the defendant will satisfy any judgment which may be therein rendered against it or will pay the estimated value of said property released, with lawful interest thereon from the date of this bond.

"Witness our hands this 3rd day of April, 1930.

"[Signed] SMITH'S CASHWAY, INC.,

"W. E. SCHWAMM,

"S. P. APPLEWHITE."

Accordingly on April 4th the sheriff released the attached property. On April 22d Smith's Cashway Grocery Company, a corporation, attempted to enter a special appearance for the purpose of moving that the service of summons in the action be set aside and vacated, and that the levy of the writ of attachment be quashed and the action dismissed. The reason alleged in the motion which was supported by the affidavit of Schwamm to that effect was that "Smith's Cashway, Inc.," was not a corporation or a partnership or an individual; that the attached property belonged to "Smith's Cashway Grocery Company," a corporation, and the service of summons was made on W. E. Schwamm, who at the time of the service was the president and general manager of "Smith's Cashway Grocery Company," a corporation. The court heard the motion and vacated the writ of attachment and quashed the summons, and from said order this...