In re Hemrich's Guardianship

• Citation: 59 P.2d 748,187 Wash. 21
• Decision Date: 22 July 1936
• Docket Number: 26206.
• Court: Washington Supreme Court
• Parties: In re HEMRICH'S GUARDIANSHIP. v. FIRST NAT. BANK OF SEATTLE et al. HEMRICH et al.

59 P.2d 748

187 Wash. 21

In re HEMRICH'S GUARDIANSHIP.

HEMRICH et al. v. FIRST NAT. BANK OF SEATTLE et al.

No. 26206.

Supreme Court of Washington

July 22, 1936

Department 2.

Appeal from Superior Court, King County; John A. Frater, Judge.

Proceeding in the matter of the guardianship of John A. Hemrich, an incompetent, wherein Anita M. Hemrich was appointed guardian of John A. Hemrich, and the First National Bank of Seattle presented a claim to the guardian. From two adverse orders and an order appointing Samuel F. Rathbun second guardian of John A. Hemrich, Anita M. Hemrich, individually and as first guardian of John A. Hemrich, and John A. Hemrich, by such first guardian, took separate appeals, which were consolidated.

Orders affirmed.

F. C. Kapp, of Seattle, for appellants.

Poe Falknor Falknor & Emory and S. H. Kelleran, all of Seattle for respondents.

MAIN Justice.

There are here for consideration three separate appeals which have been consolidated for hearing and determination.

June 4 1934, Anita M. Heimrich was appointed guardian of John A Hemrich, an incompetent person, and duly qualified as such. The respondent First National Bank of Seattle held promissory notes signed by the ward as maker some time prior to the guardianship. One of the notes was also signed by a corporation of which he owned practically all of the stock. The bank presented its claim, based on the notes, to the guardian, which was neither allowed nor disallowed within the thirty days provided by statute. Thereafter the bank began two separate actions on the notes, which resulted, on June 29, 1935, in judgments in an aggregate amount in excess of $54,000. From both of these judgments the guardian appealed, giving a cost bond, but no supersedeas bond.

July 25, 1935, and after the appeals had been taken, the bank filed a petition in the probate court asking that the guardian be required to sell certain property of the estate in satisfaction of its judgments. This application was resisted by the guardian, but resulted in the entry of an order on November 2, 1935, directing the sale of the assets in question, from which order the guardian gave notice of appeal, perfecting the same by giving a bond for costs. The guardian did not proceed with the sale as ordered, and the bank, on November 22, 1935, filed a petition asking her removal. The hearing on this application resulted in an order directing the guardian to give a supersedeas bond upon the bank's judgments, and authorizing her to pledge the property of the estate for such purpose, and providing that, in default, an order would be entered removing her and appointing another guardian in her stead. December 23, 1935, such an order was entered, from which she appealed. The first guardian appointed declined to serve, and an order was entered appointing Samuel F. Rathbun as guardian, who qualified as such. He, not being content to proceed with the sale of the assets on the preceding order, filed another petition for the sale of the same, and an order was entered directing the sale, from which the former guardian appealed.

As above stated, these three appeals were consolidated. Since these appeals were taken, the prior appeal from the two judgments of the bank, above mentioned, had been heard in this court and the judgments affirmed. First National Bank v. Hemrich (Wash.) 58 P. (2) 827.

Whether the appeal by the guardian from the bank's judgments, without the giving of a supersedeas bond, operated to stay a sale of the assets of the guardianship, depends upon the statute of this state and the decisions of this court. Decisions from other states upon the question, where the statutory provisions are different, are not helpful in determining the question.

Rem.Rev.Stat. § 1722, in part, provides that an appeal shall not stay proceedings 'on the judgment or order appealed from or on any part thereof,' unless there shall be a bond conditioned that the appellant will satisfy and perform the judgment or order appealed from in case it shall be affirmed. It will be noted that the statute says 'judgment or order.'

Referring to this statute in Fisher v. Seattle Trust Co., 109 Wash. 257, 186 P. 649, 650, it was said: 'There is no warrant under the statutes of this state for impounding a fund in court after judgment directing its payment except upon the giving of a supersedeas bond, which is intended, among other things, to protect a successful litigant from the loss of interest while he is kept out of the use of his money.'

In Cunningham v. Mitchell, 126 Wash. 294, 218 P. 386 388, it was said: 'On December 22, 1920, Miss Bowen filed her claim in the bankruptcy proceedings for the indebtedness owing her upon the judgment above mentioned. Rury, by his attorney, this appellant,...