McLiesh v. Ball

• Decision Date: 10 June 1910
• Parties: McLIESH et ux. v. BALL et ux.
• Court: Washington Supreme Court

109 P. 209

58 Wash. 690

McLIESH et ux. v. BALL et ux.

Supreme Court of Washington

June 10, 1910

Department 2. Appeal from Superior Court, King County; Mason Irwin Judge.

Action by Alexander McLiesh and wife against James Ball and wife. Judgment for defendants, and plaintiffs appeal. Affirmed.

Karr &amp Gregory, for appellants.

Brady &amp Rummens and W. H. B. Thomas, for respondents.

DUNBAR J.

This is an action by the appellants to dispossess the respondents James Ball and Sarah Ball, his wife, of lots 28 and 29, block 167, Gilman's addition to the city of Seattle, King county, Wash. The facts upon which the action is based in brief are as follows: On February 11, 1907, James G. Combs, who had been an attorney for the respondents brought an action against said respondents for attorney's fees, and recovered a judgment in the sum of $95.60. On February 15, 1907, Combs filed a transcript of said judgment in the superior court of King county, Wash., and on March 5, 1907, execution on said judgment was issued and levied by the sheriff of King county, and on April 13, 1907, the sheriff sold the property to satisfy the said judgment, Combs being the purchaser at the execution sale, for the sum of $109.78. The return of the sale was made, and the same was confirmed April 27, 1907. On April 16, 1908, the sheriff executed his deed to said lots to the said James G. Combs to satisfy said judgment. Said deed was duly entered in the proper records. In the month of May, 1908, Combs and wife executed a quitclaim deed to said land to Alexander McLiesh, one of the appellants herein. The purchase price was $1,000, $200 being paid in cash and a mortgage given for the balance in the sum of $800. Before the sale of the land it appears from the evidence that Combs had notified Ball that sale would be made if the judgment was not satisfied. Prior to the sale, however, and shortly after the judgment was obtained, according to the testimony of Ball and his witness, he had a communication from Combs, the judgment creditor, and Combs instructed him to pay the money for the satisfaction of the judgment to one Cummings, an attorney in Seattle, and that he would be responsible for the payment of the money to him by Cummings. This transaction is denied by Combs. It is claimed that the money was paid in accordance with Combs' instructions to Cummings, and that there were some delays on the part of Cummings in turning the money over to Combs for a few days; that in the meantime Combs had incurred some expense in the way of having a transcript of the judgment properly entered in the superior court, and that he refused to accept said money until such extra expenses, amounting to a few dollars, had been paid; that Cummings refused to pay said extra expenses, and that Combs then proceeded with the sale of the land. The answer also alleged fraud on the part of Combs, and the appellants herein in the transfer of the title to the lots in question, denied that the appellant was an innocent purchaser, and upon these issues the cause went to trial, the jury finding in favor of the defendants. The court entered a judgment canceling the deeds upon which plaintiffs relied, and quieting defendants' title. From this judgment, this appeal is taken.

The assignments are that the court erred (1) in permitting the judgment to be attacked collaterally in this proceeding; (2) in refusing to give an instructed verdict for the plaintiffs (3) in allowing certain evidence to be admitted, which it is claimed is prejudicial to the jury in rendering a fair and impartial verdict. As to the first assignment, we do not think the cases cited by appellants reach the particular case under consideration. There is no attempt here to question the regularity of any of the proceedings leading up to the judgment, or to question or attack the judgment itself. The contentions which are vital to the case are over matters arising subsequently to the rendition of the judgment, viz., that the judgment has been paid; and, if that contention be true, the judgment...