J.H. Mulrein Plumbing Supply Co. v. Walsh

• Decision Date: 07 February 1924
• Docket Number: Civil 2113
• Citation: 26 Ariz. 152,222 P. 1046
• Parties: J. H. MULREIN PLUMBING SUPPLY COMPANY, a Corporation, Appellant, v. W. J. WALSH, as Surviving Partner of the Firm of DE FORE & WALSH, and BANK OF CHANDLER, a Corporation, Appellees
• Court: Arizona Supreme Court

222 P. 1046

26 Ariz. 152

J. H. MULREIN PLUMBING SUPPLY COMPANY, a Corporation, Appellant, v. W. J. WALSH, as Surviving Partner of the Firm of DE FORE & WALSH, and BANK OF CHANDLER, a Corporation, Appellees

Civil No. 2113

Supreme Court of Arizona

February 7, 1924

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Affirmed.

Messrs Clark & Clark and Mr. Clarence E. Johns, for Appellant.

Mr Arthur E. Price, for Appellees.

OPINION

SAMES, Superior Judge.

This is an appeal from a judgment for garnishee on an issue in garnishment. Appellant, J. H. Mulrein Plumbing Supply Company, a corporation, instituted action No. 15257C in the Superior Court of Maricopa county against W. J. Walsh, as surviving partner of the firm of De Fore & Walsh, and W. J Walsh, defendants, to recover an indebtedness of $894.96 for plumbing supplies sold to said firm, and on November 15, 1921, caused a writ of garnishment to issue in said action, directed to appellee Bank of Chandler, as garnishee. Said bank answered, denying any indebtedness to said defendants or either thereof, or that it had any effects of the defendants in its possession. Appellant controverted the bank's answer, and tendered issue in garnishment, alleging that in July, 1920, said Bank of Chandler took into its possession, at Chandler, Arizona, for itself and for its own use, and not by way of purchase in due course of trade, a certain stock of hardware, plumbing supplies, and materials, being the property of the defendants De Fore & Walsh, and reasonably worth the sum of $894.96, and ever since said date had retained possession of the stock, or the proceeds thereof. The appellee bank answered, denying that it took the property of the defendants into its possession, or that the goods specified were reasonably worth the sum of $894.96, but alleged that the same were not worth in excess of $350, and further alleged that after January 1, 1921, and prior to the issuance of said writ of garnishment, the firm of De Fore & Walsh being indebted to the bank on a certain promissory note signed by the defendants, said defendant W. J. Walsh, as surviving partner of said firm, authorized and instructed said bank to sell certain of said attached property and apply the proceeds of the sale of the same upon the payment of the firm's indebtedness to the bank; that such sales were made and the proceeds, amounting to $323.38, applied on said indebtedness; that said bank was not indebted to the defendants or either thereof; and that it had no effects of the defendants in its possession. On May 15, 1922, upon the issue in garnishment so framed, the lower court, trying the same without a jury, rendered judgment against plaintiff and in favor of said garnishee, from which judgment plaintiff appeals.

The contention in the garnishment proceedings arose out of the disposal of the same stock of plumbing supplies and materials involved in an earlier action by said Bank of Chandler against said firm of De Fore & Walsh.

In July, 1920, the Bank of Chandler instituted action No. 12996 in said superior court of Maricopa county against S. C. De Fore and W. J. Walsh, defendants, to recover amounts aggregating $1,060, remaining unpaid of the principal sums, together with interest and costs, on certain promissory notes executed by the defendants to said bank, and on July 23, 1920, caused a writ of attachment to issue, under which the stock of plumbing materials and supplies of the defendants at Chandler was levied upon and stored by the sheriff in the Stapley warehouse at Chandler. The J. H. Mulrein Plumbing Supply Company, claiming ownership of the stock, filed affidavit and bond, and obtained possession therof. Plaintiff bank tendered issue denying the ownership of the claimant, and asserted the stock to be the property of De Fore & Walsh. Answer was made by claimant, and upon the issue thus joined the trial court on December 2, 1920, found the ownership of the property to be in De Fore & Walsh. The stock was thereupon returned to the custody of the sheriff, and was stored in a room adjoining or in the vicinity of the Bank of Chandler, to which the latter had access. The stock of materials and supplies was not sold in the course of the attachment proceedings to enforce the attachment lien thereon, but, while the attachment was still subsisting, all of the stock was disposed of by sales made by the bank from which it received sums amounting to $324.65, which were credited by the bank on the notes of De Fore & Walsh, on which suit had been brought. Some articles, including a bathroom set, were first sold or reserved to several purchasers, but the remainder, which constituted the greater part of the stock, was sold in February, 1921, to Jennings & Son, for which the bank received $225. De Fore, a member of the partnership defendants, died in August, 1920, and Walsh assumed charge of the firm's business to wind up the affairs of the same and to pay off as many of the firm's debts as possible. The suit in which the attachment issued was dismissed on motion of defendants on July 11, 1921.

Appellant assigns error of the lower court on four propositions; the first two of which are as follows: (1) That the property was sold by the bank without legal right. The goods were not perishable. If they were, or if they should have been sold, the bank was not the proper party to sell them. The Revised Statutes of Arizona 1913, Civil Code, pars. 1413 to 1420, inclusive, prescribe the manner in which property under a writ of attachment shall be sold or kept; (2) Recourse to garnishment was proper, and the writ reached any effects of the defendants in the hands of the bank, garnishee, whether such effects consisted of the goods, or, in the event of disposal, their value.

The trial court found that the Bank of Chandler was not indebted to said W. J. Walsh, as surviving partner of the firm of De Fore & Walsh, or to said W. J. Walsh, and that said garnishee did not have any effects of said W. J. Walsh, as surviving partner of said firm, or of said W. J. Walsh, in its possession at the time of service upon said garnishee of the writ of garnishment issued in said action, and that defendant garnishee has incurred costs and expense including attorney's fees in the cause in the sum of $100.

The particular grounds for the decision are not otherwise specified. The record discloses no request for special findings. The bank's assertion, in its answer to plaintiff's tender of issue, that the defendant W. J. Walsh, as surviving partner of the firm of De Fore & Walsh, authorized and instructed the bank to sell the stock of supplies and apply the proceeds upon the indebtedness of De Fore & Walsh to the bank raised an issuable and material fact, and the judgment rendered on the issue in garnishment must be presumed to have been predicated upon a finding by the trial court that the bank was so authorized and instructed by said defendant Walsh to dispose of the stock for the purpose specified.

Where the record does not contain express findings of all material facts involved in the case, it will be presumed on appeal that the lower court found in favor of the prevailing party all of the facts necessary for the support of the judgment. 4 Corpus Juris, 778 (§ 2728); Blackford v. Neaves, 23 Ariz. 501, 205 P. 587; Croft v. Bain, 49 Mont. 484, 143 P. 960; Thomas v. Newcomb et al., supra, p. 47, 21 P. 226.

Though the evidence in this case is sharply conflicting as to any agreement between the bank and Walsh for the disposal of the stock, the record...