McDaniels v. J. J. Connelly Shoe Co.

• Decision Date: 30 December 1902
• Citation: 71 P. 37,30 Wash. 549
• Parties: McDANIELS v. J. J. CONNELLY SHOE CO. et al.
• Court: Washington Supreme Court

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.

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 in large sums to various wholesale dealers, among whom 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 this respect. They not only stated that the appellant had good reason to believe, and did believe, that the answers were incorrect in the particular wherein it was averred that the respondents had no property or effects in their possession or under their control belonging to the defendant J. J. Connelly Shoe Company, but the grounds upon which that belief was based were detailed at length, namely, facts were alleged tending to show that the respondents had taken into their possession and attempted to acquire title to a stock of goods belonging to the defendant under circumstances prohibited by statute.

The further question involves the constitutionality of the act of March 16, 1901 (Sess. Laws 1901, p. 222; Pierce, Code, § 5346 et seq.). The first section of this act makes it the duty of every person who shall bargain for or purchase any stock of goods in bulk, for cash or on credit, before paying the vendor any part of the purchase price thereof, to demand of and receive from the vendor a written statement showing the names and addresses of all of the creditors of the vendor together with the amount of such indebtedness, whether due or to become due, owing to each of such creditors, verified according to a form set out in the statute. The second section makes 'fraudulent and void' any sale of a stock of goods in bulk unless the vendee demands and receives from the vendor the statement mentioned in the first section, verified as therein provided, 'and without paying, or seeing to it that the purchase money of said property, is applied to the payment of the bona fide claim of creditors of the vendor as shown upon such verified statement, share and share alike.' The third section makes it perjury...