Kitsap County Bank v. U.S. Fidelity & Guaranty Co.

• Decision Date: 26 February 1916
• Docket Number: 12909.
• Citation: 90 Wash. 12,155 P. 411
• Parties: KITSAP COUNTY BANK v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: Washington Supreme Court

155 P. 411

90 Wash. 12

KITSAP COUNTY BANK v. UNITED STATES FIDELITY & GUARANTY CO.

No. 12909.

Supreme Court of Washington

February 26, 1916

Department 1. Appeal from Superior Court, King County; John E Humphries, Judge.

Action by the Kitsap County Bank against the United States Fidelity & Guaranty Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

Vince H. Farben, of Seattle, for appellant.

Ryan &amp Desmond, of Seattle, for respondent.

ELLIS J.

This is an action upon a bond given upon an injunction ancillary to the transfer of summary proceedings to foreclose a chattel mortgage from the sheriff to the superior court for proceedings by suit pursuant to Rem. & Bal. Code, § 1110. The case was tried to the court without a jury.

The court found, in substance, that on October 1, 1910, the plaintiff then being the owner of a chattel mortgage executed by the Kitsap Mill Company on personal property consisting of machinery and equipment of a lumber mill in Kitsap county began foreclosure through the sheriff by taking possession of the property and giving notice of sale, under which the property would have been sold on October 13, 1910; that on October 4, 1910, the mill company in an action against the sheriff, the plaintiff and one Lundberg in the superior court of King county obtained an order restraining the sale and a show cause order returnable on October 7, 1910; that on October 7, 1910, on the hearing of the return to the show cause order the court entered an injunction restraining the foreclosure, except by an action in court and restraining any interference with the operation of the mill and requiring that upon the giving by the mill company of a bond in the sum of $1,000 the property be turned back to it; that on October 7th pursuant to that order the defendant herein, United States Fidelity & Guaranty Company, executed such bond for $1,000, conditioned that the mill company would pay all damages and costs resulting from the injunction; that thereafter the plaintiff, Kitsap County Bank, in an action of replevin in the superior court of Kitsap county against the mill company claimed the right to possession of the mortgaged property and other property, and by giving a replevin bond secured a writ of replevin on which the sheriff made his return in October, 1910, and delivered the property to the plaintiff. The court's findings then conclude as follows:

'That at the time of the issuance of said injunction and the filing of the bond herein sued upon, the said Kitsap Mill Company was indebted to the plaintiff herein by reason of said mortgage, in the sum of $1,400, together with interest thereon at the rate of 10 per cent. per annum, from August 19, 1910, and that, at said time, one John H. Lundberg, an experienced and practical mill man, who held a prior mortgage on said property, had agreed to purchase, and would have purchased the Kitsap County Bank's equity therein, for the full amount of its mortgage, and that, by reason of said injunction and the postponement and discontinuance of said sale as noticed, the sale of plaintiff's equity in said property to said John H. Lundberg failed, and that the said plaintiff herein has been unable to make a sale of said property, or any portion thereof, for any amount whatsoever, and that the said mill machinery and equipment described in said mortgage is unsalable and still in its possession, and the same has become rusted and corroded and greatly depreciated in value, without fault of plaintiff, to plaintiff's damage in the sum of $500; and that, in addition thereto, said plaintiff was forced to, and did incur attorney's fees, which it has paid, in the sum of $350, for its defense in said injunction suit, and that, pending the entry of the judgment therein, this plaintiff was forced to, and did expend the sum of $438.56 in clerk's and sheriff's fees, keeper's fees, horse feed, and other costs necessary for the safe-keeping and maintenance of the property.'

No exceptions were taken to any of these findings, save to that quoted, and the exception to that was filed two days late.

The defendant, however, made a timely request for findings in substance as follows: That the action of replevin was commenced by the plaintiff on October 11, 1910; that on that date the property was seized by the sheriff and kept in his possession until October 20, 1910, when it was delivered to the plaintiff's possession; that from October 11th to October 20th the property suffered no deterioration from rust, corrosion, or otherwise; that plaintiff made no motion to dissolve the injunction, and that any costs and fees incurred by the plaintiff were incurred in the foreclosure suit on its merits; that all expenses incurred by the plaintiff for the preservation of the property were incurred subsequent to October 11, 1910, and that the sum of $18.80 was paid in the foreclosure suit for clerk's fees; that the foreclosure proceedings went to final decree on December 6, 1910, and it was therein adjudged that Lundberg had a valid first mortgage on the property for $1,000 and interest, and that plaintiff had a valid mortgage for $1,400 and interest, subject to that of Lundberg; that the decree provided for a sale of the property, the proceeds to be used first in satisfaction of the Lundberg mortgage, with interest and costs, and the balance, if any, in satisfaction of the plaintiff's mortgage, with interest and costs, but that no sale was ever ordered or made under that decree; that the plaintiff's replevin suit proceeded to judgment on December 6, 1910, wherein the plaintiff was adjudged to be the lawful owner of the property. Seasonable exceptions were taken to the refusal of the court to make these findings.

On the findings made by the court and an appropriate conclusion of law, judgment was entered in favor of the plaintiff and against the defendant for $1,000 and costs. Defendant appeals.

The respondent moves to dismiss this appeal indicating many particulars in which the appellant has failed to observe the governing statutes. An inspection of the record shows that the appellant has in fact been tardy in almost every step taken during the progress of the appeal. But it does not follow that the appeal must be dismissed. None of the defective steps call for a dismissal of the appeal, though the failure of the appellant seasonably to take exceptions to the court's findings does preclude a review of the evidence, except so far as necessary to pass upon the action of the trial court in excluding offered evidence ( Bringgold v. Bringgold, 40 Wash. 121, 82 P. 179; Berens v. Cox, 70 Wash. 627, 127 P. 189; Harbican v. Chamberlin, 82 Wash. 556, 144 P. 717) or to pass upon the refusal of the trial court to make proposed findings not contradictory...