Kolatch v. I. Rome & Sons

• Decision Date: 11 January 1926
• Docket Number: 19440.
• Citation: 242 P. 38,137 Wash. 268
• Court: Washington Supreme Court
• Parties: KOLATCH v. I. ROME & SONS et al.

242 P. 38

137 Wash. 268

KOLATCH v. I. ROME & SONS et al.

No. 19440.

Supreme Court of Washington

January 11, 1926

Department 2.

Appeal from Superior Court, King County; Hall, Judge.

Action by Sander Kolatch, sole trader, doing business as the Seattle Jobbing House, against I. Rome & Sons and another. From judgment for plaintiff on remittitur, after reversal of former judgment on appeal, named defendant appeals. Affirmed.

McClure & McClure and Walter S. Osborn, all of Seattle, for appellant.

Bausman Oldham & Eggerman, and Edw. L. Rosling, all of Seattle, for respondent.

TOLMAN C.J.

This case has once before been in this court. Kolatch v. Rome & Sons, 131 Wash. 320, 230 P. 135. It was there held:

'So that the court found that the defendant Rochester Wholesale House's goods which it offered to deliver in purported compliance with its contract were the same goods which were impounded by garnishment proceedings, and, of course, the same goods which were discharged to the defendant I. Rome & Sons under their discharge bond.

'We are compelled to conclude that, under this bond which provided that, 'if Rome & Sons, a corporation defendants, shall perform the judgment of the court in the above-entitled action,' given pursuant to the statute for a discharge bond so conditioned, Rome & Sons, as principal, and its surety rendered themselves liable for any judgment which might be rendered by the court upon appellant's cause of action. * * *

'We feel bound to conclude that the dismissal of Rome & Sons as a defendant did not release it as a principal not as surety upon the discharge bond. The third and fourth conclusions of law and the judgment are, consequently, not sustained by the findings.'

The judgment then under consideration was reversed without any special direction other than is to be gathered from a reading of the whole opinion.

Upon the going down of the remittitur, and upon application of the plaintiff (respondent here) without the taking of further evidence, and upon the record as it then stood, the trial court entered its judgment, which, after reciting the facts as to the reversal of the former judgment in this court, proceeds:

'And it appearing therefrom that the findings of fact heretofore entered by this court on February 25, 1924, stand unaffected by said appeal and unreversed, and that the first two conclusions of law entered by this court on February 25, 1924, stand unaffected by said appeal and unreversed, which first two conclusions of law are as follows:

"That plaintiff is entitled to a judgment against the Rochester Wholesale House in the sum of $976.50, with interest on $252 from July 24, 1922, to November 1, 1922, and on said aggregate sum from November 1, 1922, and for costs and disbursements herein, such judgment to be payable only out of the interest of the Rochester Wholesale House in the goods impounded by the writs of garnishment issued out of this court on November 13, 1922, directed against the Federal Reserve, Bank, a corporation, and the Northern Pacific Railway Company, a corporation.

"That the bond to discharge the writs of garnishment given by defendant I. Rome & Sons as principal and National Surety Company, as surety, which bond is dated November 30, 1923, operated to discharge said writs, and became substituted security for such judgment as plaintiff might obtain in this action.'

'Now, therefore the court being fully advised in the premises, it is hereby ordered, adjudged, and decreed that plaintiff have and he is hereby given judgment against defendant Rochester Wholesale House, a corporation, in the sum of $976.50, with interest on $252 from July 24, 1922, to November 1, 1922, amounting to $5.40, and interest on said sum of $976.50 from November 1, 1922, to February 7, 1925, amounting to $132.97, together with his costs and disbursements herein, said judgment to be payable only out of the dissolution bond filed herein on November 30, 1923, upon which I. Rome & Sons are principal and the National Surety Company, a corporation, is surety, such liability to be established by an action brought for the purpose.'

And from this judgment the defendant I. Rome & Sons has appealed.

Considerable space is devoted to a discussion of the effect of a reversal without specific instructions; appellant seeming to contend that in all such cases, or at least in this case, such a reversal calls for a new trial. Without analyzing the authorities cited, we think it sufficient to say that in this jurisdiction the effect of such a reversal is to be determined...