Metropolitan Club v. Massachusetts Bonding & Ins. Co.

• Decision Date: 07 December 1923
• Docket Number: 18076.
• Citation: 220 P. 818,127 Wash. 320
• Court: Washington Supreme Court
• Parties: METROPOLITAN CLUB v. MASSACHUSETTS BONDING & INS. CO.

220 P. 818

127 Wash. 320

METROPOLITAN CLUB v. MASSACHUSETTS BONDING & INS. CO.

No. 18076.

Supreme Court of Washington

December 7, 1923

Department 1.

Appeal from Superior Court, King County; John Truax, Judge.

Action by the Metropolitan Club against the Massachusetts Bonding &amp Insurance Company and another. From a judgment in favor of the named defendant, plaintiff appeals. Reversed, and judgment ordered entered.

Baxter & Jones, of Seattle, for appellant.

Grinstead & Laube and Harry A. Rhodes, all of Seattle, for respondent.

HOLCOMB J.

A motion by respondents to strike the statement of facts herein because not served on respondent's codefendant, Brazer or his attorney, and no notice of filing of the statement of facts served on Brazer or his attorney, is denied as not well founded. While the statute, section 389, Rem. Code, provides for the service of the statement of facts by appellant and of written notice of the filing thereof, on any party who is a party to the cause other than the adverse party to the appeal, such service is not jurisdictional. Mogelberg v. Calhoun, 94 Wash. 662, 163 P. 29; In re Patterson, 98 Wash 334, 167 P. 924.

Moreover, the codefendant of respondent did not appeal, although judgment went against him, and it is not he who is moving against the statement of facts. Appellant was served with the statement of facts and at the settlement thereof consented and concurred therein as certified by the trial judge. The case of First National Bank v. Andrews, 11 Wash. 409, 39 P. 672, cited upon this point by appellant, is not in point, because in that case the defendant, who was not served, was similarly situated with his codefendant, and under the appeal section had to be served with notice of appeal, being an adverse party the same as his codefendant. In the present case appellant had judgment against respondent's codefendant in its favor for the full amount it had asked.

A motion to dismiss the appeal is also made upon the ground that (a) the notice of appeal was not served upon respondent's codefendant in the action, nor upon his attorney; (b) that the purported notice of appeal to the codefendant was not filed within five days after its purported service, with a written proof of admission of service thereof; (c) that Brazer, the codefendant, is not named as an obligee on the appeal bond.

The record shows that the notice of appeal was served upon Brazer, the codefendant, although proof thereof was not filed within five days nor until May 12, 1923, in the court below, which was before the record was sent to this court on June 6, 1923,

The service of the notice of appeal and the filing of the notice with proof of service on the respondent within the statutory time was a jurisdictional necessity, but proof of service on the codefendant could have been made even 90 days after, if the appeal was not thereby delayed. Reynolds v. Reynolds, 42 Wash. 107, 84 P. 579; Main Investment Co. v. Olson, 43 Wash. 480, 86 P. 657; Sipes v. Puget Sound Electric Co., 50 Wash. 585, 97 P. 723; Seargeant v. Russell, 110 Wash. 216, 188 P. 466; Gazzam v. Young, 114 Wash. 66, 194 P. 810.

Nor does the statute prescribe when the proof of service of notice on other than the prevailing party shall be filed. Sipes v. Electric Co., supra.

It was not necessary to name Brazer or make him a beneficiary of the bond, appellant having a separate judgment against him, with which it was satisfied, and not appealing as to Brazer. Had Brazer taken a separate appeal, it would have been necessary for him to furnish a bond to respondent. Smith v. Diamond Ice & Storage Co., 65 Wash. 576, 118 P. 646, 38 L. R. A. (N. S.) 994.

The motion to dismiss this appeal is therefore denied.

The action is against one Brazer and his surety to recover judgment for sums embezzled by Brazer, while in the employ of appellant as its secretary and manager.

The case was tried to a jury, which rendered a verdict that Brazer had embezzled from appellant the sum of $3,000, and rendered a verdict against the bonding company for the sum of $2,000, the penal sum of its bond. After the verdicts were filed, appellant's motion for judgment against Brazer in the sum of $2,583.63 was granted; appellant having waived all sums in excess of that amount. Its motion for judgment against the bonding company on the verdict was denied. The motion of the bonding company for judgment n. o. v. was granted.

The court submitted the case to the jury upon very fair and accurate instructions to which no exceptions were taken.

The complaint alleged, and there was evidence tending to prove, that from March 1 to October 1, 1921, Brazer, in the course of his duties, handled all of the club's money, collected all dues and charges from members, had general charge of the club rooms, including its dining room, billiard rooms, etc., bought all supplies, paid all bills, and had the management of the club under the direction of its officers and trustees. At the request of the officers of the club, he furnished a bond written by respondent, in the sum of $2,000, to secure the appellant against any loss by acts of larceny or embezzlement on his part. The evidence tended to show that during the course of his management Brazer embezzled sums amounting to about $3,700, for which he had not accounted, and that the bonding company was notified of the embezzlement and neither it nor Brazer had reimbursed the club.

The bonding company, in its amended answer, admitted the issuance and delivery of the bond, but alleged that it had no knowledge of the above losses. It further alleged affirmatively that in order to procure the bond the club made an employer's statement, a copy of which is attached to the answer, the material points of which are as follows:

'Q. 4(c) How long has he been in your employ? A. 4(c) Three weeks.

'Q. 12(a) If in charge of merchandise, state nature, probable maximum value and other particulars? A. 12(a) Club property, cigars, etc., $1,000.00.

'Q. (b) How often will inventories of same be taken by any one in your employ other than the applicant? A. (b) Monthly.

'Q. 15(a) To whom and how frequently will he account for his handling of funds, securities and property? A. 15(a) To club officers, monthly.

'Q. (b) What means will you use to ascertain whether his accounts are correct? A. (b) Annual audit by certified accountant.

'Q. 16(a) At what intervals will his books, accounts and vouchers be inspected and audited, and all moneys, securities and values reported as due, on hand or in bank, be examined and verified? A. 16(a) Annually.

'Q. (b) By whom will such audits and inspections be made? A. (b) Certified public accountants.

'Q. (c) When was such an examination and verification last made? A. (c) March 1, 1921.

'Q. (d) Were they found correct in every respect? A. (d) Yes.'

Respondent further alleged that these statements were implied warranties and were false, and were not performed by the club. Appellant replied denying the allegations of the affirmative defenses.

From a judgment entered dismissing the bonding company upon its motion for judgment n. o. v., appellant appealing assigns the same as error.

The only question necessary to be determined by us is whether or not there was sufficient evidence to take the case to the jury under the issues as affecting respondent.

Respondent insists that there was not sufficient evidence, or any evidence at all, to justify the case going to the jury as to it, and that there being nothing for the jury to pass upon, it was purely a question of law for the court.

These contentions are based principally upon the answers to questions 12(b), 15(a and b), and 16(a, b, c, and d).

Question 12(b) was, 'How often will inventories of same (merchandise) be taken by any one in your employ other than the applicant?' The answer was 'Monthly.' The answer to the first part of the preceding question stated that the club property consisting of cigars, etc., of the value of about $1,000, would be in the charge of Brazer.

The evidence shows that Brazer made a somewhat detailed report for March, his first month, headed 'Loss and Gain,' showing, under the head of 'Inventory 2/28,' the property on that date on hand, coming into his control. It also showed the quantity on hand as of '3/31.' Such a report was also made for April and June in the same form, to the club officers. There was also a penciled report made for another month, which could not be found. Other reports were made by Brazer up to September of that year, and at a meeting held later in September Brazer was discharged. These reports showed the quantity of merchandise on hand, and the merchandise was evidently there to show for itself, except that which had been sold. It was not the merchandise that was stolen or embezzled by Brazer, but moneys. There was therefore no apparent injury to respondent by the failure to have separate monthly inventories taken by some one other than the employee.

Question 15(a) was, 'To whom and how frequently will he account for his...