Mayer v. Morgan

• Decision Date: 07 September 1901
• Citation: 26 Wash. 71,66 P. 128
• Court: Washington Supreme Court
• Parties: MAYER v. MORGAN et al. (COLE, Sheriff, Garnishee; TRADERS' NAT. BANK, Intervener.

66 P. 128

26 Wash. 71

MAYER v. MORGAN et al. (COLE, Sheriff, Garnishee; TRADERS' NAT. BANK, Intervener.

Supreme Court of Washington

September 7, 1901

Appeal from superior court, Spokane county; Leander H. Prather Judge

Action by Sol H. Mayer, assignee of a judgment obtained by the Northwestern & Pacific Hypotheek Bank, a corporation, against John M. Morgan and another, in which C. A. Cole, sheriff os Spokane county, was made garnishee defendant, and in which proceedings the Traders' National Bank intervened. From a judgment in favor of the garnishee defendant and the intervener, the plaintiff appealed. Affirmed.

Adolph Munter, for appellant.

P. C Shine, for respondent.

WHITE J.

On the 14th day of January, 1895, a judgment in the superior court for Spokane county was rendered in favor of James E. Fenton and Daniel W. Henley against John M. Morgan, on which judgment on December 20, 1899, there remained a balance of $109.65, with interest. On the 22d day of July, 1895, a judgment was rendered in said court in favor of the Traders' National Bank, respondent, against the said John M. Morgan and Marietta E. Morgan, his wife, and each of them for the sum of $600, with interest and costs. This judgment was duly docketed, as required by law, to become a lien on real estate. This jodgment was unsatisfied. On the 16th of September, 1895, the Northwestern & Pacific Hypotheek Bank recovered two judgments in the same court against the said Morgan and wife, which judgments were duly docketed in the office of the clerk of the court. On these judgments there were unpaid balances of $743.85 and $1,092.45, respectively. These judgments were duly assigned to Sol H Mayer, the appellant. On the 20th of September, 1899, an execution was issued on the judgment recovered against Morgan by said Fenton and Henley. Under this execution certain real estate owned by Morgan and his wife was, on January 27, 1900, sold for the sum of $500. There was left the sum of $348.67 over and above the amount of the Fenton-Henley judgment. At the time of the sale under the execution on the FentonHenley judgment, the attorney for the Traders' National Bank of Spokane attended the sale, and immediately thereafter notified the sheriff that the Traders' National Bank claimed the surplus proceeds of said sale by virtue of the lien of its judgment, it being next in order of date and docketing to that under which the real estate was sold. Immediately after said sale, and after the sheriff had indorsed the execution as hereinafter stated, the appellant caused a writ of garnishment to issue on one of the judgments of the Northwestern & Pacific Hypotheek Bank against Morgan and wife, directed to C. A. Cole, sheriff of Spokane county, and caused the same to be served on the sheriff, appellant having issued execution on said judgment, and placed the same in the hands of said sheriff on January 26, 1900. On January 27, 1900, the Traders' National Bank caused and execution to issue upon its judgment, which, on said day, was placed in the hands of the sheriff after said writ of garnishment had been served. The sheriff indorsed upon the execution issued by appellant the following: 'Sheriff's Return. State of Washington, County of Spokane--ss.: I hereby certify that I received the within execution on January 26, 1900, and on January 27, 1900, there came into my hands as the proceeds of sale of real estate under an execution a surplus of $341,70, which I received, levied upon and applied to the within execution. C. A. Cole, Sheriff of Spokane County, by C. E. Nosler, Deputy.' The words 'levied upon and applied to the within execution' were erased, and the following words added after the word 'received,' 'and, being in doubt as to whom it helonged, I paid the same into court on the 16th day of February, 1900, with the request that the court direct the distribution of the same. I found no other property, real or personal, of the defendants, within the county, upon which to levy,'--which words were added above the signature of the sheriff. On the 16th day of February, 1900, the sheriff filed his answer to said writ of garnishment, and paid to the clerk of said court the sum of $346.67, being the amount of surplus proceeds of said sale admitted in said answer, less $2, paid for filing said answer. On March 2, 1900, the sheriff returned and filed with the clerk of the court an execution issued on appellant's judgment and on respondent's judgment, with the same indorsement on both, except as to the dates of their reception by the sheriff. The cause was heard on the 19th of September, 1900, the parties in open court waiving a trial by jury, and agreeing that the cause be tried by the court. The court rendered its decision in favor of the respondent, finding that the surplus proceeds should be treated as land, and that the same should be applied to the payment of the oldest judgment, to wit, the judgment of the respondent, and judgment was accordingly entered directing the clerk to apply said surplus in the satisfaction of the respondent's judgment, and for costs against the appellant.

The appellant claims that the surplus proceeds became the personal property of the judgment debtor, under subdivision 5, § 6, p. 88, Laws 1899, and that, as he was more diligent than the respondent in placing his writ of execution in the hands of the sheriff and in garnishing the sheriff, he should receive the proceeds. The laws relating to the lien of judgments and the enforcement of the same must be considered as a whole in determining the meaning of any part and must receive such a construction as will harmonize all their provisions, if possible. Subdivision 5, § 6, p. 88, Laws 1899, must not be considered alone,...