Kalb-Glibert Lumber Co. v. Cram

• Decision Date: 29 November 1910
• Citation: 60 Wash. 664,111 P. 1050
• Parties: KALB-GLIBERT LUMBER CO. v. CRAM et al.
• Court: Washington Supreme Court

111 P. 1050

60 Wash. 664

KALB-GLIBERT LUMBER CO. v. CRAM et al.

Supreme Court of Washington, En Banc.

November 29, 1910

Appeal from Superior Court, Pacific County; A. E. Rice, Judge.

Action by the Kalb-Glibert Lumber Company against H. E. Olson and others and W. S. Cram and others, as sureties. From a judgment for plaintiff, W. S. Cram and others appeal. Reversed and remanded.

For opinion in department, see 57 Wash. 550, 107 P. 381.

Chas. E. Miller and Robert G. Chambers, for appellants.

Welsh &amp Welsh, for respondent.

RUDKIN C.J.

This was an action to foreclose a lien on a vessel for the purchase price of material used in its construction. The complaint alleged that the owners were about to remove the vessel beyond the jurisdiction of the court, and a receiver was appointed to take charge of the property pendente lite. After the appointment of the receiver, the defendants in the action petitioned the court to release the vessel, upon their substituting a bond in the penal sum of $1,500 in its place and stead. The prayer of this petition was granted, and the defendants filed a bond with the appellants herein as sureties, conditioned that the defendants would discharge and perform the judgment of the court in the foreclosure action. The bond also contained this further condition or stipulation: 'It being one of the conditions of this obligation that this bond and the personal liability of the principals and sureties thereon shall be and become and are substituted for any security or claim which the said Kalb-Glibert Lumber Company may have against said vessel 'Doris' aforesaid, her tackle, apparel and furniture and that said action may proceed in all manner as though said vessel remained within the jurisdiction of the above entitled court, as this bond and the principals and sureties aforesaid, are hereby substituted for and taking the place of said vessel.' The vessel was released pursuant to this bond, and upon the trial of the action judgment was given against the original defendants and against the appellants as sureties on the bond in the sum of $1,067, and $25 costs of suit. From this judgment the sureties appealed, and the judgment was affirmed in one of the departments of this court ( Kalb-Glibert Lumber Co. v. Cram, 57 Wash. 550, 107 P. 381), after which a hearing before the court en banc was granted. The appellants were not served with process in the court below, and made no appearance in the action, so that the authority and jurisdiction of the court to render judgment against them must be found in the terms and conditions of the foregoing bond.

While the cases may not be strictly analogous, a majority of the court are of opinion that the principles announced in O'Connor v. Lightizer, 34 Wash. 152, 75 P. 643 Noble v. Whitten, 34 Wash. 507, 76 P. 95, and Davis v. Virges, 39 Wash. 258, 81 P. 688, are absolutely controlling here. In O'Connor v. Lighthizer the lower court gave judgment against the sureties on a cost bond, required of a nonresident plaintiff under section 495, Rem. & Bal. Code, and in discussing the legal effect of such a judgment this court said: 'The only statutory provisions relating to the bond for costs in the superior court of which we have any knowledge, are found in section 5186, Bal. Code. That statute makes no provision for the entry of judgment as of course against the sureties, in the same action in which the bond is filed. Without such express statutory authority as entering into, and becoming a part of, the contract in the bond whereby the sureties consent to such judgment, we believe judgment cannot be entered against them; and they are not, therefore, parties appearing in the action upon whom notice of appeal is required, within the meaning of section 6504, Bal. Code. Not being persons against whom judgment may be entered as of course by statutory authority, they are entitled to their day in court. An attempt to enter an of course judgment against the sureties was without notice and void; but one may appeal from even a void judgment for the purpose of having it judicially determined as void.' In Noble v. Whitten, speaking of the point decided in the Lighthizer Case, the court said: 'It was held that, in the absence of express statutory authority for entering judgment against the sureties, the power to do it does not exist, and that such judgments when entered are void.' In Davis v. Virges, supra, a supersedeas bond was given, conditioned that the appellants would pay the amount awarded by the judgment on appeal, and that, 'If the appellants do not make such payment within 30 days after the filing of the remittitur from the Supreme Court, judgment may be entered on motion of the respondents in their favor against the undersigned sureties for the said sum of $750, together with $45.95 costs, together with _____ interest that may be due thereon, and the damages and costs which may be awarded against the appellants upon the appeal.' After the cause was remitted the court below entered judgment against the sureties on an oral motion and notice, but that judgment was reversed by this court on appeal. Among other things the court said: 'There are no provisions of law authorizing the lower court to enter a judgment in this summary way upon a statutory bond given on appeal to this court.' And, after quoting from the Lighthizer Case, to the same effect, the court added: 'Counsel for respondent argue that, because the bond provides that judgment may be entered against the sureties upon motion for the amount due from the principal, therefore the lower court had jurisdiction to enter the judgment as of course. It is sufficient answer to this to say that this bond is a statutory bond. The provisions under consideration were not required by statute. Its insertion, therefore, was a mere gratuity which added no legal right or liability. It was surplusage. If this provision may be held to confer a right to enter a judgment as of course, without an action upon the contract, the same rule would permit a judgment upon any contract when it is stated that judgment may be taken upon default of the terms of the contract. This can never be a just and equitable rule and is not permitted. The debtor must be given his statutory notice by summons, so that he may have his day in court.'

It seems to us that the provisions of the bond in that case were broader and conferred greater powers on the court than does the bond now before us. The stipulation that the bond and personal liability of the principals and sureties were substituted for and in the place of the vessel is only what the law would imply, in the absence of such a stipulation. In redelivery bonds of all kinds the bond is substituted for the property, but the power to render personal judgment against the sureties in such cases is expressly given by statute, whenever the Legislature intends that such a power shall exist. In entire harmony with our own decisions on this question, see, Selby v. McQuillan, 45 Neb. 512, 63 N.W. 855; Campbell v. May, 31 Ala. 567; Garrott v. Fuller, 36 Ala. 179; Creanor v. Creanor, 36 Ark. 91; Walker v. Walker, 42 Ga. 141.

In Walker v. Walker, supra, the court said: 'Can judgment...