Kuhn v. Lewis
| Decision Date | 19 August 1929 |
| Docket Number | 21797. |
| Court | Washington Supreme Court |
| Parties | KUHN et al. v. LEWIS et al. |
Department 1.
Appeal from Superior Court, Grays Harbor County; Wm. E. Campbell Judge.
Proceeding by Chas. E. Kuhn and another against Thomas Lewis and another, to determine the right to certain personal property seized under execution. Judgment for defendants, and plaintiffs appeal. Affirmed.
Martin F. Smith, of Hoquiam, for appellants.
F. L Morgan, of Hoquiam, for respondents.
Thomas Lewis, one of the defendants and respondents in this proceeding, having recovered judgment in the superior court for Grays Harbor county against one Ida McKanna, caused execution to issue upon his judgment, by virtue of which execution the sheriff seized certain personal property as the property of the judgment debtor and advertised the same for sale. The property levied upon consisted of an automobile and different articles of household furniture. Immediately after the levy, this proceeding was instituted by the filing of a joint affidavit by Charles E. Kuhn and Lulu Kelly , in which affiants stated that they were the owners of the personal property which had been seized, with the exception of the automobile. As to that, Charles E. Kuhn filed his affidavit stating that the same was his property. Claimants having filed bonds, the property in question was delivered to them and a trial was had to the court in the manner provided by law, between the claimants as plaintiffs and the judgment creditor and the sheriff as defendants, for the purpose of determining, as between the parties, the title to and the right to possession of the personal property upon which the sheriff had levied. The testimony introduced on behalf of claimants, Kuhn, and Kelly, being practically the same as to the title to the automobile and the rest of the property, the fact that Lulu Kelly claims no interest in the automobile will hereafter in this opinion be disregarded, and the plaintiffs will be referred to as though they were claiming jointly all of the property. The trial resulted in a judgment in favor of the defendants, which judgment the court set aside in granting a motion for a new trial made by plaintiffs. The second trial, before a different judge, also resulted in a judgment in favor of the defendants, from which plaintiffs, or claimants, have appealed to this court.
The validity of the judgment in favor of respondent Lewis and against Ida McKanna is, of course, not in issue here; the sole question being whether or not the personal property levied upon by the sheriff pursuant to that judgment was the property of Ida McKanna, the judgment debtor, or of the appellants Charles E. Kuhn and Lulu Kelly.
It seems to be undisputed that the property in question has at different times belonged to Ida McKanna, either absolutely, or as purchaser under contract of conditional sale; appellants claiming that she conveyed the same, or her interest therein, to appellant Kuhn prior to the sheriff's levy thereon. Mrs. McKanna did not testify at the second trial, nor was her testimony given at the first hearing made a part of the record. Appellant Lulu Kelly comes rather incidentally into the picture by way of an alleged purchase of some of the property from appellant Kuhn, which articles she thereupon immediately agreed to resell to Mr. Kuhn by contract of conditional sale. Lulu Kelly was absent from the state at the time of the trial and did not testify, nor was her deposition taken.
Appellant Charles E. Kuhn testified to his purchase, for value, of a cow, a piano, a Ford coupé, a phonograph, and household furniture, from Ida McKanna in September, 1924, and that in the spring of 1925 Mrs. McKanna gave to him her interest in certain furniture and effects which she was purchasing from Matt Maljanen and wife, and that he (Kuhn) paid to the Maljanens the balance due them on Mrs. McKanna's contract for the purchase of the furniture,...
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