Koth v. Kessler

• Court: Washington Supreme Court
• Writing for the Court: PARKER, J.
• Citation: Koth v. Kessler, 59 Wash. 641, 110 P. 540 (Wash. 1910)
• Decision Date: 23 August 1910
• Parties: KOTH v. KESSLER et al.

110 P. 540

59 Wash. 641

KOTH v. KESSLER et al.

Supreme Court of Washington

August 23, 1910

Department 2. Appeal from Superior Court, Adams County; O. R. Holcomb Judge.

Action by Ed. Koth against A. E. Kessler and others, one Vehrs intervening. From a judgment dismissing the action, plaintiff appeals, and defendants move to dismiss an appeal by intervener. Judgment affirmed.

Merritt Oswald & Merritt and W. M. Nevins, for appellant.

Zent &amp Cannon and Davis & Davis, for respondents.

PARKER J.

The plaintiff, being a judgment creditor of the defendants Lobe and wife, brought this action to have set aside upon the ground of fraud and want of consideration four certain chattel mortgages given by the defendants Lobe and wife to Kessler. A trial before the court resulted in findings and judgment denying the relief prayed for, and the dismissal of the action. The plaintiff has appealed from this disposition of the case.

Statements made in the briefs of counsel, both for appellant and respondents, indicate that the intervener, Vehrs, served notice that he joined in the appeal of the plaintiff. We find no such notice in the record brought here. Counsel for respondents move to dismiss the appeal of intervener, Vehrs, and to affirm the judgment as to him because such appeal has not been perfected by filing a bond. In the reply brief of counsel for appellant Koth, it is stated by them that they are not attorneys for the intervener, Vehrs, and that they inadvertently signed their opening brief in this case as 'attorneys for appellants.' It is apparent, therefore, that we will have to ignore any appeal by Vehrs, since we have no record showing he is an appellant, nor any appearance for him in this court. We cannot dismiss his appeal, assumed by counsel for respondents to have been taken, for the reason it is not before us in any form.

Learned counsel for appellant excepted to certain of the findings made by the trial court and also excepted to the refusal of the court to make certain findings requested by them. The principal contentions made in behalf of appellant are based upon facts which we think the record shows to be either conceded or proven beyond controversy. We will first consider these facts and state our views touching the rights of the parties as affected thereby.

Appellant is the owner by assignment of four certain judgments rendered against respondents Lobe and wife on November 12, 1907, November 23, 1907, January 16, 1909, and February 1, 1909, for the aggregate amount of approximately $900. On October 20, 1908, respondent Kessler entered into a contract with respondent Gustav Lobe, by the terms of which Kessler agreed to sell, and Lobe agreed to purchase, a tract of land in Spokane county for $4,000, payable $1,500 on September 1, 1909, $900 on December 1, 1909, $1,000 on September 1, 1910, and $600 on September 1, 1911. This land was acquired by Kessler after marriage, but his wife did not join in the execution of the contract by signing the same. This contract contains conditions that would work a forfeiture of the purchaser's rights thereunder, in the event of failure to make payment of the installments of purchase price as they became due. On October 22, 1908, Lobe and wife executed and gave to Kessler a promissory note for $1,500 and a chattel mortgage upon certain of their property to secure the payment thereof. On May 26, 1909, Lobe and wife executed and gave to Kessler another promissory note for $900 and a chattel mortgage upon certain of their property to secure payment thereof; and on July 20, 1909, Lobe and wife executed and gave to Kessler another promissory note for the sum of $900 and a chattel mortgage upon certain of their property to secure payment thereof. These three notes and mortgages were given and accepted for the payments upon the land sale contract made between Kessler and Lobe, which by the terms of that contract became due $1,500 September 1, 1909, $900 December 1, 1909, and $1,000 September 1, 1910; the latter payment being discounted $100 which accounts for the last note being only $900. This left only the final payment of $600 with interest, falling due September 1, 1911, unaffected by these notes and mortgages. On December 23, 1908, Lobe executed and gave to Kessler a promissory note for $500 and a chattel mortgage upon certain of the community property to secure payment thereof. This was for money loaned by Kessler to Lobe. These four chattel mortgages the appellant seeks to have set aside upon the ground that they were given and accepted without consideration, and with intent to defraud Lobe's creditors, and to have the property covered by them subjected to the payment of appellant's judgments.

The principal contention of learned counsel for ...