Jensen-King-Byrd Co. v. Williams

• Decision Date: 23 May 1904
• Citation: 35 Wash. 161,76 P. 934
• Court: Washington Supreme Court
• Parties: JENSEN-KING-BYRD CO. v. WILLIAMS.

76 P. 934

35 Wash. 161

JENSEN-KING-BYRD CO. v. WILLIAMS.

Supreme Court of Washington

May 23, 1904

Appeal from Superior Court, Spokane County; William E. Richardson Judge.

Action by the Jensen-King-Byrd company against C. H. Williams, doing business under the style of the Columbia Hardware Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

O. C. Moore, for appellant.

P. F Quinn, for respondent.

DUNBAR J.

This is an appeal from a final order in a proceeding supplemental to execution. On July 30, 1903, respondent filed its motion for the issuance of a citation against appellant, requiring him to appear and give testimony respecting the amount and location of his property, in order that the same might be reduced to the satisfaction of a judgment held by respondent against him in the above-entitled cause. In support of this motion respondent filed an affidavit setting forth that the on October 7, 1898, it obtained a judgment against the appellant for the sum of $501, and $16 costs and interest that the sum of $458.85 still remains due and unpaid on said judgment, and that execution had been issued thereon, and returned with the report that no property could be found that appellant, Williams, possessed money and personal property which he failed and neglected to produce and apply to the satisfaction of siad judgment; and that an order of court was necessary in order that said Williams might be required to submit his property to the satisfaction of said judgment. Appellant appeared in response to the citation, and made a motion to quash the service and return thereof, on the ground that the issuance of said citation was inadvertent, wrongful, and without the jurisdiction of the court, said motion being based upon all the records in said action and upon the affidavit of appellant. The affidavit set forth that during the years 1897 and 1898, prior to the 6th day of August, 1898, appellant was engaged in the mercantile business in the state of Washington; that on the 6th day of August, 1898, he made a general assignment of all his assets, of every kind and character, for the benefit of all his creditors; that in his said deed of assignment appellant gave a list of all of his creditors and the creditors of said Columbia Hardware Company, and the amount of their claims; that thereafter, on the 25th day of August, 1898, Morton Doty, as assignee of said estate, filed his bond as required by law, took possession of all the assets and property belonging to the said assigned estate, and filed in the office of the clerk of the superior court of the state of Washington and for Stevens county, where said assignment was made, his inventory of the assets of said estate, showing the same to be of the value of $2,071.11; that the assignee thereafter gave notice of said assignment, as required by law, to all the creditors of affiant and the said Columbia Hardware Company, including respondent; that the judgment in this action, and upon which said supplemental proceeding is based, is for an indebtedness of this affiant and of the Columbian Hardware Company on account of goods purchased by said Columbia Hardware Company prior to the 6th day of August, 1898; that the judgment creditor herein, the Jensen-King-Byrd Company, was duly and regularly notified to the making of said assignment by said assignee, as required by law, and that neither the Jensen-King-Byrd Company, nor any other creditor of the appellant, nor the Columbia Hardware Company, at any time instituted bankruptcy proceedings against affiant...