Masterson v. Ogden
| Decision Date | 26 March 1914 |
| Citation | 139 P. 654,78 Wash. 644 |
| Parties | MASTERSON v. OGDEN et al. |
| Court | Washington Supreme Court |
Department 1. Appeal from Superior Court, King County; King Dykeman Judge.
Action by Cora Masterson against A. Ogden and others. Judgment for plaintiff, and defendants appeal. Affirmed.
Willett & Oleson, of Seattle, for appellants.
Brady & Rummens and Tucker & Hyland, all of Seattle, for respondent.
The plaintiff brought this action against James Masterson, her husband, for the purpose of securing a divorce. Howard D. Masterson and Harry C. Masterson, sons of James Masterson and Hattie Walk, a stepdaughter, were made parties defendant.
The facts as found by the trial court, in so far as they are necessary to an understanding of the questions presented upon this appeal, are in substance as follows: On September 14, 1910, the plaintiff and the defendant, James Masterson, were united in marriage. The plaintiff was then 34 years of age, and James Masterson was 77. At the time of the marriage James Materson was the owner of real property of the reasonable value of approximately $8,000, and was possessed of about $20,000 worth of personal property. After the marriage there was no further accumulation of property. On or about the 19th day of February, 1913, the defendants James Masterson, Harry C. Masterson, and Howard D. Masterson, contemplating an early demise of James Masterson, and in the event of his death that the plaintiff would have an interest by inheritance in his property, and for the purpose of depriving her of her right by inheritance, and to prevent her from securing any part thereof through litigation with him during his lifetime, mutually agreed and concluded among themselves that James Masterson should transfer all real and personal property owned and possessed by him to his sons, Harry C. Masterson and Howard D. Masterson. In consummation of this mutual understanding and agreement, James Masterson did on this day, by certain assignments and by deeds, grant and convey to his two sons all his real and personal property. At the same time he executed and caused to be recorded a mortgage in the sum of $3,000 in favor of his stepdaughter, Hattie Walk. This mortgage covered certain of the real property then owned by James Masterson. At the time of making and executing the mortgage Hattie Walk was in Honolulu, Hawaii, and had no knowledge of the existence thereof until subsequent to the commencement of the present action. There was no valuable consideration for the mortgage. In consideration of the transfer of the real and personal property, the sons agreed to erect upon a lot thereafter to be designated by their father a house which, together with the land upon which the same would be situated, would be of the value of $2,400, and would pay to him so long as he lived the sum of $125 per month. The house had not been erected. The income from the personal property, which consisted of notes secured by mortgages, and which were transferred to the sons, was in excess of the sum of $125 per month. At the time James Masterson owned no property other than the notes and mortgages and the real estate mentioned.
The trial court concluded that the property was transferred to the sons for the purpose of cheating and defrauding the plaintiff, and for the purpose of placing the property of James Masterson beyond her reach. A decree was entered dissolving the bonds of matrimony, and awarding to the plaintiff the sum of $4,500, together with an attorney's fee of $250, and providing that, until such time as these sums should be paid, there should be a lien upon both the real and personal property, superior and prior to any claim of Howard D. Masterson and Harry C. Masterson therein or thereto. The decree also adjudged that the mortgage to Hattie Walk was subsequent and junior to the lien granted by the decree to the plaintiff. This decree was entered on the 13th day of May, 1913. On the same day a motion for new trial was duly made and overruled. Thereupon notice of appeal was given. On the 15th day of May, 1913, the appeal was perfected by the filing of a cost bond, and giving notice thereof. After the appeal had been perfected, and on May 24, 1913, James Masterson died. His death being suggested, one A. Ogden, his executor, was substituted as a party to the action.
The executor has interposed a motion to abate and dismiss the action. The respondent construes this as a motion to dismiss the appeal, and as thus construed urges, that the same be granted. The executor, however, takes the position that the granting of the motion would operate as a dismissal of the entire proceeding, both from this and the superior court; his view being that an appeal in a divorce case sets aside the judgment entered by the superior court, and the parties thereto remain husband and wife pending the appeal.
The appellants' brief discloses a painstaking investigation into the respective effects of appeals and writs of error at common law. It is unnecessary to follow this discussion, for the reason that appellate procedure in this state is defined by the statutes. Neither does the general statute governing appeals aid in determining the question, for there is a special statute made applicable to appeals in divorce cases. Rem. & Bal. Code, § 996, which governs appeals in divorce cases, provides, among other things, that when an appeal is taken 'the Supreme Court shall be possessed of the whole case as fully as the superior court was, and may reverse, modify, or affirm said judgment, according to the real merits of the case.' The concrete question upon the motion is the construction of this statute. In State ex rel. Gibson v. Superior Court, 69 Wash. 280, 124 P. 686, construing the statute, it was held that 'upon the appeal the Supreme Court acquires jurisdiction of the whole case, and for every purpose.' It does not follow from this, however, that the appeal vacates and sets aside the judgment of the superior court. The language of the statute itself does not harmonize with such view, for it is there provided that this court may reverse, modify, or affirm the judgment of the superior court, and not that it may enter a judgment as though it were a court of original jurisdiction.
While it is true that the case is here tried de novo, yet it would seem that the correct construction of the statute is that pending the appeal the judgment is not vacated or set aside, but is merely suspended. In Coffman v. Finney, 65 Ohio St. 61, 61 N.E. 155, 55 L. R. A. 794 speaking upon this question, the court said: ...
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Renn v. Renn
... ... provided that the rights of purchasers without notice and for ... a valid consideration have not intervened. Masterson ... v. Ogden, 78 Wash. 644, 139 P. 654, Ann. Cas. 1914D, ... 885; Barber v. Barber, 21 How. (U. S.) 582, ... 16 L.Ed. 226; Fahey v. Fahey, 43 Col ... ...
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Sullivan v. Comm'r of Internal Revenue
...the lower court, but only that the judgment was suspended, and the marriage relation was not revived by the appeal. Masterson v. Ogden, 78 Wash. 644, 139 Pac. 654 (1914); but see Lippincott v. Lippincott, 131 Neb. 186, 3 N.W.2d 207 (1942); Woods v. Woods, 236 Mo.App. 855, 159 S.W.2d 320 ...
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In re Tulleners
...in a divorce action is " ‘incidental.’ " Id. (quoting Dwyer , 40 Wash. at 460, 82 P. 746 ). It did acknowledge that in Masterson v. Ogden , 78 Wash. 644, 139 P. 654 (1914), the court had reviewed property provisions of a decree notwithstanding the death of the husband during the appeal, but......
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Sewell v. Sewell
... ... was.'' ... In ... speaking of Rem. & Bal.Code, § 996, Judge Main, in the case ... of Masterson v. Ogden, 78 Wash. 644, 139 P. 654, ... 655, Ann.Cas.1914D, 885, stated: 'The appellants' ... brief discloses a painstaking ... ...