Lowman & Hanford Co. v. Ervin

• Decision Date: 15 July 1930
• Docket Number: 22443.
• Citation: 290 P. 221,157 Wash. 649
• Court: Washington Supreme Court
• Parties: LOWMAN & HANFORD CO. v. ERVIN et al.

290 P. 221

157 Wash. 649

LOWMAN & HANFORD CO. v. ERVIN et al.

No. 22443.

Supreme Court of Washington

July 15, 1930

Department 2.

Appeal from Superior Court, King County; Howard M. Findley, Judge.

Action by the Lowman & Hanford Company against H. E. Ervin and wife wherein writ of attachment was issued, and by P. M. Hadley against H. E. Ervin, wherein plaintiff obtained execution on judgment recovered. From judgment holding lien of execution prior to that of attachment, the Lowman & Hanford Company appeal.

Reversed.

Murphy & Kumm and Orville C. Hatch, Jr., all of Seattle, for appellant.

Bausman Oldham & Walkinshaw and Hart Snyder, all of Seattle, for respondents.

FRENCH J.

Respondent Hadley, in the superior court of King county, on the 8th day of November, 1929, obtained a judgment against the defendant Ervin. Appellant Lowman & Hanford Company, on the 21st day of November, 1929, commenced an action in the superior court of King county against the defendant Ervin, and on the same day caused a writ of attachment to be issued and delivered to the sheriff, and by virtue of said writ of attachment the sheriff duly levied upon certain personal property in King county, pointed out by Lowman & Hanford, by taking possession thereof. Thereafter on the 25th day of November, 1929, respondent caused to be issued an execution upon his judgment, the same was delivered to the sheriff of King county, and on the 25th day of November, 1929, the sheriff levied upon the personal property in his possession held by virtue of the writ of attachment.

The property seized by the sheriff is not sufficient to satisfy both the judgment and the attachment, and the sole question presented is whether the levy under the writ of execution has precedence over the levy under the writ of attachment.

This appeal is taken from a judgment holding the lien of the execution levy prior to that of the attachment.

Section 667, Rem. Comp. Stats., reads as follows:

'If judgment be recovered by the plaintiff, the sheriff shall satisfy the same out of the property attached by him which has not been delivered to the defendant or claimant as in this chapter provided, or subjected to execution on another judgment recovered previous to the issuing of the attachment, if it be sufficient for that purpose,----

'1. By applying on the execution issued on said judgment the proceeds of all sales of perishable or other property sold by him, or so much as shall be necessary to satisfy the judgment;

'2. If any balance remain due, he shall sell under the execution so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in his hands.

'Notice of the sale shall be given and the sale conducted as in other cases of sales on execution.'

It is the contention of respondent that by the express wording of the statute the writ of attachment cannot take precedence over the writ of execution issued by virtue of the prior judgment.

The...