Morse v. Estabrook
| Decision Date | 07 March 1898 |
| Citation | 52 P. 531,19 Wash. 92 |
| Parties | MORSE ET UX. v. ESTABROOK, SHERIFF (SEATTLE HARDWARE CO., INTERVENER. |
| Court | Washington Supreme Court |
Appeal from superior court, Whatcom county; J. P. Houser, Judge.
Action by R.I. Morse and wife against A. B. Estabrook, as sheriff of Whatcom county. The Seattle Hardware Company intervened. Judgment for defendant. Plaintiffs and intervener appeal. Affirmed.
Dorr & Hadley, for appellants R.I. Morse and Etta Morse.
Black & Leaming, for appellant Seattle Hardware Co.
Nicholson & Hurlbut, for respondent.
The plaintiffs brought this action to restrain the sheriff from selling community personal property under an execution issued upon a judgment against the husband for a suretyship debt to which the wife was not a party. The Seattle Hardware Company intervened, also, to restrain the sale, alleging that they were creditors of the community, and that their claims arose upon a sale to the plaintiffs of some of the property levied upon, etc. Judgment was rendered for the defendant, and plaintiffs and intervener have appealed.
In Powell v. Pugh, 13 Wash. 577, 43 P. 879, it was held that community personal property could be sold on execution to satisfy a judgment against the husband for a separate debt, citing a prior decision of the territorial supreme court. It was urged in that case that the sale ought not to be permitted, on the ground that it appeared there was not enough of the community personalty to satisfy the community debts; but it was said that, as none of the community creditors were questioning the transaction, the court would not express an opinion as to what rights, if any they could maintain in the premises. That question is now presented by community creditors. The plaintiffs were engaged in the hardware business, and had incurred debts to various persons, including intervener, for the purchase price of merchandise; but, in the absence of any specific lien upon such property for such debts, they are not entitled to priority over a creditor of the husband who has obtained a prior levy. This has been the settled practice under the territory and state, and, if it is a hardship, it is a matter for legislative remedy. But it may be well to observe that for a long time, during which several sessions of the legislature have been held, this field has been substantially left alone, and as a result the community propererty...
To continue reading
Request your trial