McDaniels v. J. J. Connelly Shoe Co.

• Court: United States State Supreme Court of Washington
• Writing for the Court: FULLERTON, J.
• Citation: 71 P. 37,30 Wash. 549
• Parties: McDANIELS v. J. J. CONNELLY SHOE CO. et al.
• Decision Date: 30 December 1902

71 P. 37

30 Wash. 549

McDANIELS
v.
J. J. CONNELLY SHOE CO. et al.

Supreme Court of Washington

December 30, 1902

Appeal from superior court, Pierce county; W. H. Snell, Judge.

Action by John H. McDaniels against the J. J. Connelly Shoe Company, defendant, and A. J. Burchill and another, garnishees. From a judgment dismissing the garnishee action, plaintiff appeals. Reversed.

[30 Wash. 550] Bates & Murray, Leopold M. Stern, E. S. Blattner, and John H. McDaniels, for appellant.

Ira A. Town, A. R. Titlow, and F. M. Halsted, for respondents.

FULLERTON, J.

The appellant brought an action in the superior court of Pierce county against the J. J. Connelly Shoe Company, as defendant, to recover upon certain accounts for merchandise which had theretofore been assigned to him by the wholesale dealers who had sold the merchandise to the defendant. At the time of commencing the action the appellant sued out a writ of garnishment against the respondents A. J. Burchill and William Turner, averring in his affidavit for the writ, in the language of the statute, that he had reason to believe, and did believe, that the respondents were indebted to the defendant the J. J. Connelly Shoe Company, and that they had in their possession and under their control personal property and effects belonging to the defendant. The respondents answered separately to the writ, averring, in substance, that they were not indebted to, and did not have in their possession or under their control any personal property or effects of, the defendant. To these answers the appellant filed a controverting affidavit, in which he alleged that he had good reason to believe, and did believe, that the answers of the respondents were incorrect, particularly that part of the answers which averred that the respondents had no personal property or effects in their possession or under their control belonging to the defendant; further averring, in substance, that the defendant had theretofore been engaged in the retail boot and shoe business in the city of Tacoma, and had become indebted [71 P. 38] in large sums to various wholesale dealers, among whom [30 Wash. 551] were the assignors of the appellant; that just prior to the commencement of the action the defendant had undertaken to sell to the respondents, and the respondents had undertaken to purchase of the defendant, its stock of goods in bulk; that the goods had been delivered, and the agreed purchase price paid, without a compliance with the provisions of the statute relating to the sale of stocks of goods in bulk, and was therefore fraudulent and void. The respondents thereupon moved for a discharge upon their answers, which motion the trial court granted, entering a judgment of dismissal of the garnishee action. This appeal is from that judgment.

The trial judge sustained the motion to dismiss on the ground that the act of the legislature of March 16, 1901, relied upon by the appellant, is unconstitutional and void; and it is to this question that the arguments are mainly directed. The respondents, however, insist that the controverting affidavits were insufficient to raise an issue, and that the judgment of dismissal should be sustained for that reason. But without following the argument in detail, we are satisfied that the affidavits were sufficient to raise the issue sought to be raised. The statute (section 5409, Ballinger's Ann. Codes & St.) provides that, if the plaintiff should not be satisfied with the answer of the garnishee, he may controvert the same by affidavit in writing signed by him, stating that he has good reason to believe that the answer of the garnishee is incorrect; stating in what particulars he believes the same is incorrect. The affidavits controverting the answers of the respondents sufficiently complied with the statute in...