Kies v. Wilkinson

• Decision Date: 08 January 1921
• Docket Number: 16090.
• Citation: 194 P. 582,114 Wash. 89
• Court: Washington Supreme Court
• Parties: KIES v. WILKINSON et al.

194 P. 582

114 Wash. 89

KIES v. WILKINSON et al.

No. 16090.

Supreme Court of Washington

January 8, 1921

Department 2.

Appeal from Superior Court, Clarke County; H. W. B. Hewen, Judge.

Action by M. B. Kies, as receiver of the Commercial Bank of Vancouver against John Wilkinson and others. From that part of the judgment for plaintiff making the defendant Wilkinson liable as an individual only, and specifically exempting community property, plaintiff appeals, and the defendant John Wilkinson appeals from the judgment. Affirmed.

McMaster Hall & Schaefer, of Vancouver, for appellant.

Bates &amp Burnett, of Vancouver, for respondent.

TOLMAN J.

This case was before the court on a prior appeal, and is reported in 101 Wash. 340, 172 P. 351, to which reference is made for a statement of the facts and issues.

The judgment of the trial court, then in favor of the defendant Wilkinson, was reversed, with directions to permit the amendment of the complaint so as to allege the amount of the assets of the defunct bank and the amount of the claims proved and provable against it so that it might appear that the creditors of the bank had been damaged by what was held to be the wrongful withdrawal of funds from the bank by Wilkinson, and the amount of such damage, which would be the measure of recovery.

Upon the going down of the remittitur the pleadings were so amended, and upon a second trial there was evidence received establishing the amount of the claims against the bank and the value of its remaining assets, and also that 20 per cent had been paid in dividends to creditors. The court made findings accordingly, and further found that Wilkinson's deposit in the bank was carried in the name of 'John Wilkinson, county clerk of Clarke county, Wash.'; that the money could be withdrawn only on checks so signed; that the amount on deposit was made up wholly of funds which came into Wilkinson's possession officially as such county clerk; and that when Wilkinson withdrew the money from the bank on January 7, 1911, he forthwith paid it over to his successor in office as county clerk. The court further found that Wilkinson was at all times a married man. From these findings the court made conclusions of law to the effect that the bank's estate was lessened and damaged on January 7, 1911, by the wrongful payment of $3,502.48 to Wilkinson, but that there should be credited thereon 20 per cent. to equalize the dividends theretofore paid, thus reducing the recovery to $2,802.00, plus interest at 6 per cent. on such sum from January 7, 1911, to the date of the judgment; that Wilkinson's tort in receiving and retaining the money was not committed by or on behalf of the community of which he was a member, and that the community did not benefit therefrom. Judgment was entered accordingly against Wilkinson individually, with the specific provision therein that such judgment should not affect the community composed of Wilkinson and his wife. The plaintiff has appealed from that part of the judgment which purported to make liable Wilkinson as an individual only, and specifically exempted the community from all liability, and the defendant Wilkinson has appealed from that part of the judgment which granted recovery against him, and here contends that it was error to allow interest from January 7, 1911, or at all prior to judgment.

The plaintiff's appeal presents the sole question of whether the judgment should be a separate or community one. The trial court acted upon the theory that the tort was committed by the defendant as a public officer, and therefore under the rule established in Brotton v. Langert, 1 Wash. 73, 23 P. 688, and followed in Day v. Henry, 81 Wash. 61, 142 P. 439, and Bice v. Brown, 98 Wash. 416, 167 P. 1097, the community could not be held liable.

The liability held to be a separate and not a community indebtedness in Brotton v. Langert, arose while the husband was holding the office of constable, and as such sold under execution personal property in which a stranger to the writ had a special property. So, also, in Day v. Henry, the liability discussed was that incurred by a...