Howard v. Mortensen

• Decision Date: 19 August 1927
• Docket Number: 20405.
• Citation: 144 Wash. 661,258 P. 853
• Parties: HOWARD v. MORTENSEN et al.
• Court: Washington Supreme Court

258 P. 853

144 Wash. 661

HOWARD v. MORTENSEN et al.

No. 20405.

Supreme Court of Washington

August 19, 1927

Department 2.

Appeal from Superior Court, King County; Oswald, Judge.

Action by R. H. Howard against A. W. Mortensen, receiver, and another. Judgment for plaintiff, and defendants appeal. Reversed.

James Kiefer, of Seattle, for appellants.

C. S Goshert, of Seattle, for respondent.

PARKER J.

The plaintiff, Howard, seeks recovery of eight head of cattle from the defendants Mortensen and Ellington, or, in the alternative, their value as damages, which he alleges to be $250. Howard heretofore claimed ownership in the cattle, his present claim, however being his alleged right to the possession of the cattle to the end that he might hereby be enabled to turn them over to the sheriff in compliance with his present legal obligation and thereby avoid damages which he will suffer upon his failure so to do. Mortensen was appointed receiver of the cattle at the instance of Ellington in an action in the superior court wherein Ellington sought foreclosure of his lien claim for pasturing and caring for the cattle. A trial upon the merits in the superior court for King county resulted in a judgment awarding Howard recovery against Mortensen and Ellington in the sum of $165 as damages, the cattle not being capable of delivery at the time of such disposition of the case. From this disposition of the case in the superior court, Mortensen and Ellington have appealed to this court.

The controlling facts of this controversy are somewhat involved. We think, however, they are clearly established and may be fairly summarized as follows: In July, 1924, Ellington received from Colin Campbell the cattle in question, it being expressly agreed between them that Ellington should pasture and care for the cattle for an agreed compensation of $2 per head per month, to be paid by Campbell, and that Ellington might hold possession of the cattle as security for such agreed compensation. On December 24, 1924, Frances B. Seward, having an unsatisfied money judgment against Campbell which had been rendered by the superior court, caused execution to be issued thereon and requested the sheriff to levy upon the cattle as the property of Campbell and sell them in satisfaction of that judgment. The sheriff did not take possession of the cattle, but, upon exhibiting the execution to Ellington, finding them in his possession, and being advised by Ellington of his claim of lien upon them for pasturing and caring for them under his contract with Campbell, left the cattle with Ellington, taking from him a receipt reading in part as follows:

'The undersigned hereby acknowledges that he holds the above-described live stock as keeper for Matt Starwich, sheriff of King county, Wash., who has levied upon the same by virtue of an execution issued out of the superior court of Kitsap county, Wash., directed to said sheriff, reserving, however, and asserting my claim to a lien upon said live stock for pasture and feed, in accordance with the statutes of the state of Washington in such case made and provided.

'Dated December 24, 1924.

'R. A. Ellington.'

The sheriff proceeded to advertise a contemplated sale of the cattle under the execution, but such sale was not consummated. On January 7, 1925, Howard made claim of ownership to the cattle in the manner provided for by section 573 et seq., Rem. Comp. Stat., relating to adverse claims to property levied upon, giving to the sheriff appropriate affidavit and bond in that behalf. The sheriff thereupon over protest of Ellington, ignoring his possessory lien claim for the pasturing and caring for the cattle, forcibly took from Ellington the cattle and delivered them to Howard. On January 7, 1925, Ellington commenced an action in the superior court for King county against Howard and the sheriff seeking foreclosure of his lien for the pasturing and caring for the cattle. Such proceedings were had in that action that on January 16, 1925, Mortensen was duly appointed receiver to take charge of the cattle pending that action. On the following day Mortensen and Ellington found the cattle at large, not in the possession of any one. Mortensen then took possession of the cattle, as receiver, and placed them for keeping in Ellington's pasture where they had previously been kept by Ellington. By order of the court in the foreclosure action, the cattle were later released from the receivership by Campbell depositing in court an amount sufficient to satisfy Ellington's lien claim, as security in place of the cattle. On January 20, 1925, the claim of Howard to the cattle as a third party claim, under the adverse claim statute above noticed, came on for trial in the superior court, which trial resulted in a judgment against Howard; that is, a judgment denying his claim of ownership to the cattle and adjudicating that the cattle were the property of Campbell as against Howard, and that Campbell's right therein was subject to sale and satisfaction of Seward's judgment. That judgment was for the return of the cattle or their value. On ...