Kandoll v. Penttila, 29058.

• Decision Date: 08 July 1943
• Docket Number: 29058.
• Citation: 18 Wn.2d 434,139 P.2d 616
• Parties: KANDOLL et al. v. PENTTILA et al.
• Court: Washington Supreme Court

139 P.2d 616

18 Wn.2d 434

KANDOLL et al. v. PENTTILA et al.

No. 29058.

Supreme Court of Washington

July 8, 1943

Department 2.

Action by E. M. Kandoll and Hjalmar Kandoll against Ida Penttila and J. M. Koski and Helmi Koski, husband and wife, to recover the principal sum of $2,375 with interest from September 22 1940, until paid, pursuant to contract. From a judgment dismissing the action after sustaining the demurrer of Ida Penttila, the plaintiffs appeal.

Judgment reversed and cause remanded for entry of an order overruling demurrer to complaint.

BLAKE J., dissenting.

Appeal from Superior Court, Pacific County; William E. Campbell judge.

John J. Langenbach, of Raymond, for appellants.

Fred M. Bond, of South Bend, for respondent.

GRADY Justice.

On August 31, 1936, Mathilda Kandoll obtained a judgment against Ida Penttila for the sum of $2,880.60. Thereafter, E. M. Kandoll and Hjalmar Kandoll, sons of Mathilda Kandoll, and the plaintiffs in this action, acquired all her rights in the judgment. On September 22, 1936, the plaintiffs herein entered into the following written contract with the defendants Ida Penttila, the judgment debtor, and J. M. Koski and Helmi Koski, his wife:

'This contract and agreement entered into this 22nd day of September, 1936, between E. M. Kandoll and Hjalmar Kandoll, sole surviving heirs of Mathilda Kandoll, deceased, parties of the first part, and Ida Penttila and J. M. Koski and Helmi Koski, his wife, parties of the second part,

'Witnesseth:

'Whereas on the 31st day of August, 1936, in the Superior Court of the State of Washington, for Pacific County, Mathilda Kandoll secured judgment of mortgage foreclosure against Ida Penttila, in the sum of $2,888.60, said judgment being a lien upon the following described lands situated in Pacific County, Washington, to-wit [Here follows a description of the property.]

'And whereas on this day the parties of the second part have paid on said judgment the sum of $513.60 and there is now due and owing on said judgment the sum of $2,375.00.

'Now, therefore, in consideration of said payment and the mutual covenants hereinafter mentioned, it is mutually agreed between the parties hereto as follows:

'Said second parties agree as follows:

'1. That they will within two years from date hereof pay in full all of the taxes now due on said above lands and that they will pay all current taxes in full, when due and Before delinquent.

'2. That they will pay interest on the balance of said judgment at the rate of 5% per annum payable annually.

'3. That they will pay beginning the third year of this contract, the sum of $100.00 upon the principal of said judgment and yearly thereafter the same sum and they will pay on or Before the 27th day of August, 1942, the balance of said judgment with interest at the rate of 5% per annum in full.

'4. That they will not allow any timber to be cut from said lands without the written consent of said first parties, and in case of sale of said lands the above judgment shall be paid in full, no sale shall be made without written consent of first parties.

'5. That the judgment aforesaid is a valid and subsisting judgment, and a valid lien upon said lands.

'Said first parties agree as follows:

'1. That they will not levy execution on said above described lands as long as the covenants above outlined are kept by the second parties; it being mutually understood and agreed to by the parties hereto that said judgment is to be paid in full on or Before August 27th, 1942, both principal and interest.

'2. That they will reduce the interest rate on said judgment from 6 to 5% per annum.

'3. That this agreement is not a waiver of the lien of said Judgment but merely an extension of the right of execution.'

In carrying out this contract, the interest was paid to September 22, 1940. No principal or taxes were paid by the defendants. About March 31, 1943, the plaintiffs commenced this action to recover from the defendants the principal sum of $2,375, with interest from September 22, 1940, until paid. Defendant Ida Penttila was served with summons and complaint, but no service was made upon the two other defendants. She made a general appearance by demurrer, two grounds of which are the only ones necessary to be considered. No appearance was made by the two other defendants. The court sustained the demurrer by a general order, so there is Before us the questions whether the complaint states a cause of action and whether the action is barred by the statute of limitations. The plaintiffs declined to plead further, and a judgment of dismissal was entered, from which this appeal is taken.

Respondent Penttila has moved to dismiss the appeal upon the grounds that no notice of appeal was served upon the defendants J. M. Koski and wife and that no cost bond on appeal was given to them and filed.

The transcript shows that a cost bond on appeal, in proper form, was timely filed, naming all the defendants as obligees, so the second ground of the motion to dismiss the appeal must be denied. It was not necessary to serve notice of appeal upon any defendant other than Ida Penttila, as she was the only one who was served with process or appeared in the action. Rem.Rev.Stat. § 1720, provides in part: 'When the notice of appeal is not given at the time when the judgment or order appealed from is rendered or made, it shall be served in the manner required by law for the service of papers in civil actions and proceedings, upon all parties who have appeared in the action or proceeding * * *.'

The motion to dismiss the appeal upon the first ground is also denied.

On the merits of the case, the question to be decided is whether the contract Before the court is an attempt to prolong the statutory life of the judgment beyond six years from its entry, and thus enable the appellants, as successors in interest of the judgment creditor, to realize on the judgment after the six-year period has expired, or creates a new debt separate from, and independent of, the judgment, and which is secured by the judgment lien on real estate so long as such lien lives.

To answer these questions we must ascertain from the contract the intention of the parties and, when that is done, give it effect. When we place ourselves as near as we can in the position the parties to the judgment were when this contract was entered into and consider the objects to be attained, we are...