McClellan v. Gaston

• Decision Date: 20 January 1898
• Citation: 51 P. 1062,18 Wash. 472
• Parties: MCCLELLAN v. GASTON, SHERIFF.
• Court: Washington Supreme Court

51 P. 1062

18 Wash. 472

MCCLELLAN v. GASTON, SHERIFF.

Supreme Court of Washington

January 20, 1898

Appeal from superior court, Thurston county; Charles H. Ayer, Judge.

Action by T. J. McClellan against George Gaston, as sheriff, for conversion. From a judgment for plaintiff, defendant appeals. Affirmed.

Troy & Falknor, for appellant.

Phil Skillman and T. F. Mentzer, for respondent.

DUNBAR J.

On the 5th of January, 1897, A. Perry instituted an action against the respondent, McClellan, for the purpose of foreclosing a chattel mortgage given on a certain stock of goods. The summons and complaint in said action were placed in the hands of George Gaston, sheriff of Thurston county, Wash., for service. The said Gaston took possession of the stock of goods which had been mortgaged. The question of whether the possession was peaceable or forcible is a question at issue in this case. This is an action against Sheriff Gaston for the conversion of said goods. Upon the trial a verdict was rendered in favor of the respondent, and judgment entered against Gaston. From said judgment this appeal is prosecuted.

Many errors are assigned by the appellant, and many objections and motions were interposed during the trial, some of which, it seems to us, were essentially dilatory. The defendant appeared specially, and moved the court to quash the service of the summons for the reason that the same was served upon a nonjudicial day; and the overruling of this motion is the appellant's first assignment of error. It may be conceded that the summons was served upon a nonjudicial day, that a summons is a process issuing out of a court, and that, under the laws of the state, courts are closed on legal holidays. But an inspection of the summons in this case discovers the following indorsement: "Summons and Complaint. Due and legal service of the within summons and attached complaint, by copies thereof, accepted and admitted this 12th day of February, 1897. George Gaston." We think this estops appellant from raising any question as to the legality of the service of the summons. While it is probably true that the acceptance of service ordinarily goes only to the proof of service, yet in this case the objection is not that the summons was not a proper summons, or that the parties were not proper parties to be summoned, but it goes simply to the legality of the service; and, the legality of the service being admitted, the appellant cannot now be heard to object to such service. We think the demurrer to the complaint was properly overruled, and that no abuse of discretion was indulged in by the court in assigning the case for hearing.

It is also contended by the appellant that the court committed error in not granting a continuance on the showing made at the trial. The showing was as follows: "State of Wash. County of Thurston-ss.: A. Perry and James Allison, being on oath, duly sworn, deposes and says that one Mr. Bush, a brother-in-law of the defendant, who resides with the defendant, told these affiants this 29th day of April that the defendant requested said Bush to tell these affiants that he was sick, and could not be present at this trial." This was subscribed and sworn to by Perry and Allison. There was also an affidavit by A. J. Falknor, one of the attorneys for the appellant, that the defendant was a material witness in the action. It is asserted by the appellant that sickness is such a ground for continuance that it is an abuse of discretion to deny the application. Conceding the correctness of this announcement, a glance at the affidavit upon which the motion for a continuance is based is sufficient to show that there was no testimony whatever offered to the effect that the defendant was sick. If such a showing as was made in this case should be held to be a proper basis for a continuance, no case could be brought to trial against an unwilling defendant, and no one could be held responsible for perjury in avoiding trials.

There is really but one question in this case of any merit whatever, and that is as to the instructions given by the court. The mortgage contained the ordinary provision that if the mortgagor should...