Loveday v. Parker

• Decision Date: 17 August 1908
• Court: Washington Supreme Court
• Parties: LOVEDAY v. PARKER (WRIGHT et al., Garnishees.

97 P. 62

50 Wash. 260

LOVEDAY v. PARKER (WRIGHT et al., Garnishees.

Supreme Court of Washington

August 17, 1908

Appeal from Superior Court, Pierce County; M. L. Clifford, Judge.

Action by Walter Loveday against R. H. Parker, in which T. A. Wright and others were summoned as garnishees. From an order dismissing the action and discharging the garnishees plaintiff appeals. Reversed and remanded.

Raymond J. McMillan, for appellant.

Marshall K. Snell, Bertha M. Snell, and R. J. Burglehaus, for respondent.

MOUNT J.

This action was originally brought on two causes of action, on two promissory notes, one for $935, payable August 1, 1907, and the other for $930, payable August 1, 1908, both drawing interest at the rate of 6 per cent. per annum. The notes were executed by R. H. Parker and W. M. Parker, payable to the order of Dunham, Fletcher & Coleman. On the back of each of these notes was the following: 'Should I make a transfer of my real estate before this note becomes due, I agree to pay same on demand. R. H. Parker.' The original complaint was filed on March 21, 1907, before either of the notes appeared to be due upon their face. It alleged the transfer of the notes for value by the payee to the Elgin City Banking Company, and by the latter company to the plaintiff for collection, and 'that said R. H. Parker has since the execution of said notes made transfer of certain of his real estate, and said note, together with interest thereon, is now due and payable by him.' It also alleged demand and refusal to pay. The defendant did not demur to this complaint, but filed an answer, and issues were joined by a reply. At the time the complaint was filed, writs of garnishment were sued out and served upon the State Bank of Sumner and several other garnishee defendants. The State Bank of Sumner answered that it had on deposit $1,860.37 in the name of R. H. Parker, but was not able to state whether the same was the property of the said Parker or a trust fund in his name. The other garnishee defendants answered that they were indebted to said Parker in various sums. After the issues were made in the original case as above stated, the defendant R. H. Parker on July 9, 1907, moved to dissolve the garnishment on several grounds. At this hearing, which was had on July 30, 1907, the court entered an order dismissing the garnishment against the State Bank of Sumner, and allowed the plaintiff 10 days within which to file an amended complaint, and defendant R. H. Parker thereupon paid the note due August 1, 1907, and subsequently within the 10 days allowed therefor, the plaintiff filed an amended complaint declaring upon the second note, and changed the allegation relating to the transfer of defendant's real estate so as to read as follows: 'That said R. H Parker has since the execution of said note made a transfer of his real estate, and said note, together with interest thereon from August 1, 1907, is now due and payable by him.' Defendant R. H. Parker demurred to said amended complaint on the ground that it did not state a cause of action. This demurrer was sustained on August 24, 1907. Thereafter, on September 3, 1907, plaintiff gave notice that he elected to stand on the allegations of the amended complaint, and refused to plead further. On September 25, 1907, the court entered an order dismissing the action, and on September 30, 1907, an order was entered discharging the 'remaining garnishment defendants.' On October 5, 1907, the plaintiff gave notice of appeal from the order of July 30th, dismissing the writ of garnishment against the State Bank of Sumner, also from the order of September 25th dismissing the action, and also from the order of September 30th discharging the remaining garnishees.

Respondent moves to dismiss this appeal upon the following grounds: (1) That this court has no jurisdiction of the appeal herein, in so far as same purported to be an appeal from the order of July 30, 1907, dismissing the garnishment against the State Bank of Sumner, for the reason that no notice of appeal from such order was given within the time provided by law; (2) that the appellant is precluded from appealing from the judgment of dismissal of the remaining garnishments, giving judgment for costs to said State Bank of Sumner, as entered September 30, 1907, for the reason that the same was made and entered on the application of appellant; (3) that the respondent has, since this appeal was taken, tendered to appell...