Kelley v. Bausman

• Decision Date: 26 October 1917
• Docket Number: 13696.
• Citation: 168 P. 181,98 Wash. 686
• Court: Washington Supreme Court
• Parties: KELLEY v. BAUSMAN et al.

168 P. 181

98 Wash. 686

KELLEY v. BAUSMAN et al.

No. 13696.

Supreme Court of Washington, En Banc.

October 26, 1917

Appeal from Superior Court, King County; Everett Smith, Judge.

Action for separate maintenance by Sara E. C. Kelley against S Foster Kelley and others. From the decree rendered defendants other than Kelley appeal. Remanded, with instructions.

Ellis C.J., and Holcomb, Main, and Parker, JJ., dissenting.

Oldham & Goodale and Walter L. Nossaman, all of Seattle, for appellants.

Carkeek & McDonald and F. C. Kapp, all of Seattle, for respondent.

CHADWICK J.

Plaintiff brought this action against her husband for separate maintenance. She joined as defendants Frederick Bausman, Daniel Kelleher, the Seattle National Bank, the Maine Improvement Company, and Lewis C. Palmer, alleging that the defendants held property belonging to the defendant Kelley, or were indebted to him. She applied for, and was granted, an injunction restraining the several defendants from, in any way, disposing of, or interfering with, certain property alleged to be in their possession and from paying any money over to Kelley. Defendant Kelley is a nonresident of the state. He was served by publication, but made no appearance. The other defendants demurred to the complaint, which was overruled. They then answered, taking issue with the material allegations of the complaint.

While the answers were pending and undisposed of the plaintiff without notice to any of the defendants brought the case on for hearing. The court made findings charging the several defendants with having property in their possession belonging to Kelley, or with owing him money, and directed that the proceeds of certain stocks in the Seattle National Bank and the Maine Improvement Company standing in the name of another and an amount due on a certain promissory note theretofore made by defendant Kelleher in favor of Kelley be paid when due into the registry of the court. Aside from the general issue, defendants had tendered by way of affirmative defense the issue of a former settlement between the plaintiff and defendant in that the principal parties had made a division of defendant's property, and that Kelley had transferred to plaintiff property of the total value of at least $40,000, and that plaintiff has now ample means to support herself and children. The affirmative defense was upon motion stricken. The answering defendants moved against the judgment in the court below. Failing to obtain a hearing and relief, they have appealed to this court.

It is first contended that the complaint does not state a cause of action because it does not allege that the plaintiff was without fault, and that she is without means. The rule upon which appellants rest their contention is that their liability, if any, is secondary, and if plaintiff is at fault or has means of her own, she cannot maintain the action against the defendant Kelley, and that they should not, for that reason, be further vexed by her suit.

We are inclined to the opinion that the complaint should not be held bad on demurrer because it does not negative the fault of the wife or allege affirmatively that she is without funds. Fault will not be presumed. In the absence of an affirmative showing by way of defense, the court should rather hold that the wife is dependent upon the husband, or that he having the management and control of the community personal property has the use of funds which ought, in equity to be applied to the support of his wife.

It is next contended that the courts of this state cannot entertain jurisdiction because both parties are nonresidents of the state. Appellants cite many cases from other states holding that the parties, or at least one of them, to a suit for separate maintenance, must reside in the state or county in which the action is maintained. An action for maintenance is entirely independent of divorce statutes. It is transitory, and an action may be maintained without reference to the residence of the parties or either of them. State ex rel. Lloyd v. Superior Court, 55 Wash. 347, 104 P. 771.

We do think, however, that the court erred in striking the affirmative defense. Plaintiff is seeking to charge the appellants as debtors or trustees of defendant Kelley. She is seeking affirmative relief, and any defense that would be available to Kelley is available to them.

The court erred in bringing on the trial without notice to the several defendants. By their answers they denied that they held property as the trustee of Kelley, or that they were owing Kelley anything. Before a judgment of any kind could be entered against them, they were entitled to be heard.

The court erred in requiring the parties to pay money, the proceeds of stocks and the promissory note made by Kelleher into the registry of the court. So far as the record goes the stock, which plaintiff insists is the property of Kelley, is not in his name. The court had no power to say to these appellants without a hearing and without bringing in the party in whose name the stock stands that they must pay anything into the registry of the court to be distributed as the court may see fit. The appellant companies are entitled since the stockholder or the one in whose name the stock stands upon their books is not restrained, to deal with him as the owner of the stock. The order of the court was not only not warranted by the testimony, but was entirely beyond the power of the ocurt to make.

The court also erred in ordering Kelleher, either with or without a hearing, to pay the proceeds of the note which he had theretofore made in favor of Kelley into the registry of the court. It is a cardinal principle of the law that one who discharges a negotiable promissory note is entitled to a surrender of his outstanding obligation. We know of no rule that would put the maker of a note to the hazard of a double liability. Respondent meets the situation by asserting that appellants are mistaken in the form and force of the judgment; that all the court has done is to require the money to be paid into the court; and that the parties can hereafter raise any question of title that they may desire to bring to the attention of the court. Appellants are unwilling parties to this litigation. They are entitled to have their rights determined upon the issue as tendered in this proceeding; to have a judgment entered finally and forever defining their rights as against all parties in interest. Furthermore, if such be the effect of the judgment the proceeding is shorn of even the suggestion that it is a proceeding in rem, and the court would be without jurisdiction to enter any judgment at all upon the service by publication.

It is next contended that the court has no jurisdiction to entertain the suit or to enter a judgment for the want of any sufficient service upon defendant Kelley. Service was made by publication. It is said that an action for maintenance being an independent proceeding resting in the general jurisdiction of a court of equity as we have frequently held will not support a service by publication, unless some property is sequestered by attachment or garnishment. This under the rule announced in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. Respondent, as heretofore suggested, made those alleged to have property belonging to defendant parties to the suit, and procurred a temporary order restraining them from disposing of or otherwise interfering with the property pending a trial of the case.

The issue, briefly stated, is whether a restraining order directed to the person will operate as a sufficient sequestration of property to give the case the status of a suit in rem. In Waldock v. Atkins (Okl.) 158 P. 587 the court held that a temporary restraining order was not a provisional remedy within the meaning of a statute providing that to sustain a service by publication property must be sequestered by some provisional remedy; that the mere fact that the defendant owned property in the state or a debt was owing to him by the party restrained was insufficient, and in the absence of a seizure of the property, as distinguished from a direction to a third party as to the disposition of the property, the court is without power to render a judgment. But a majority of the court are of the opinion that the court has jurisdiction. The cases to which we have been referred or have found after an independent search are the following: Pennington v. Fourth National Bank, 243 U.S. 269, 37 S.Ct. 282, 61 L.Ed. 713; Bragg v. Gaynor, 85 Wis. 468, 55 N.W. 919, 21 L. R. A. 161; Murray v. Murray, 115 Cal. 266, 47 P. 37, 37 L. R. A. 626, 56 Am. St. Rep. 95; Hanscom v. Hanscom, 6 Colo. App. 97, 39 P. 885; Thurston v. Thurston, 58 Minn. 279, 59 N.W. 1017. The holding of the Oklahoma court seems the more sound to the writer, and especially to since our statute (Rem. Code, § 228) defines in terms the cases in which a summons may be published. The cases holding to the contrary might, with the possible exception of the Colorado case, be distinguished from the case at bar, but in view of the opinion...