Mottet v. Stafford

• Decision Date: 07 February 1917
• Docket Number: 13659.
• Citation: 162 P. 1001,94 Wash. 572
• Court: Washington Supreme Court
• Parties: MOTTET v. STAFFORD.

162 P. 1001

94 Wash. 572

MOTTET v. STAFFORD.

No. 13659.

Supreme Court of Washington

February 7, 1917

Department 2. Appeal from Superior Court, Walla Walla County; Edward C Mills, Judge.

Action by George Mottet against J. J. Gumm and others, wherein M. A Stafford intervened, and Thomas H. Brents was made a party defendant. From the judgment, Brents appeals, and Mottet cross-appeals. Affirmed.

Herbert C. Bryson, of Walla Walla, for plaintiff-appellant.

Thomas H. Brents, of Walla Walla, in pro. per. M. A. Stafford, of Walla Walla, Will M. Peterson, of Pendleton, Or., and J. P Neal, of Walla Walla, for respondent.

WEBSTER J.

These appeals involve conflicting claims to a fund in court. The facts are not controverted and, so far as pertinent to the questions for consideration, are these: J. J. Gumm, on the 20th day of October, 1915, in an action for damages for killing live stock, recovered a verdict against the Oregon-Washington Railroad & Navigation Company for the sum of $425. On the 19th day of October, cross-appellant Mottet, a judgment creditor of Gumm, signed and verified an affidavit in garnishment which he retained in his possession until the verdict of the jury was received and recorded; whereupon he filed the affidavit as the basis of an application for a writ of garnishment. The writ was issued and, on the same day, was served on the railroad company. Thereafter the company answered, setting forth as its only indebtedness to Gumm the amount due on the judgment for killing the live stock. About 8 a. m. on October 21st, Gumm, for value and in good faith, assigned his judgment in writing to Thomas H. Brents. About one hour thereafter, M. A. Stafford commenced an action against Gumm and caused a writ of garnishment therein to be served on the railroad company. At 11:50 o'clock of the same morning, and approximately three hours after the service of Stafford's writ of garnishment, Brents filed his assignment of judgment in the office of the clerk of the court. Subsequently Stafford, by leave of court, intervened in the garnishment proceeding of Mottet v. Gumm, setting up his writ of garnishment and claiming thereunder. Thereafter Brents was made a party defendant thereto so that the rights of all parties claiming an interest in the fund might be adjudicated. Brents answered, challenging the rights of both Mottet and Stafford and claiming the entire fund by virtue of his assignment. Issues were properly framed and the cause thereafter tried, resulting in a judgment dismissing Mottet's writ of garnishment and adjudging the rights of Brents under his assignment to be subject and inferior to the garnishment lien of Stafford. Brents appeals, and Mottet cross-appeals. Appellant Brents and respondent Stafford join in a motion to dismiss the cross-appeal upon the ground that notice thereof was not served within the time limited by law. We will first notice this motion.

The judgment appealed from was entered on the 24th day of March, 1916. Notice of cross-appeal was served on the 23d day of June, or 91 days after the entry of judgment. Both Brents and Stafford admitted timely service of the notice, but it is suggested in the briefs that this was unwittingly and inadvertently done. However that may have been, 'at the expiration of the time limited the cause of action' became an adjudicated matter, and no consent of the parties nor willingness of courts can recall a controversy thus wisely, by limitation of law, passed into the realm of ended suits.' Cogswell v. Hogan, 1 Wash. 4, 23 P. 835; Seattle, etc., Ry. Co. v. Simpson, 19 Wash. 628, 54 P. 29.

Counsel for Mottet impliedly concedes this point, but insists that, as the notice of cross-appeal was served within ten days after service of notice of the original appeal, the service was timely, and rests his contention on section 1720, Rem. & Bal. Code, which provides as follows:

'All parties whose interests are similarly affected by any judgment or order appealed from may join in the notice of appeal whether it be given at the time when such judgment or order is rendered or made, or subsequently; and any such party who has not joined in the notice may at any time within ten days after the notice is given or served, serve an independent notice of like appeal, or join in the appeal already taken. * * *'

Both Brents and Mottet were affected by the judgment, to be sure; but were they 'similarly affected,' and are they prosecuting 'like' appeals? Brents appeals from only that portion of the judgment 'which concludes and declares 'that the garnishment of the said M. A. Stafford is entitled to priority over the assignment to Thomas H. Brents, and that, upon entry of judgment in favor of said M. A. Stafford against the said J. J. Gumm, the fund or indebtedness garnished be applied to the payment of the Stafford judgment, the remainder, if any, to be applied and paid to Thomas H. Brents upon his assignment,' instead of the whole thereof being so applied.'

The question presented by this appeal is one of priority between Brents and Stafford, in which Mottet is in no way interested. That this is true is admitted by counsel for cross-appellant in the following language on page 14 of his opening brief:

'We are not concerned with the quarrel between Judge Brents and Mr. Stafford as to their relative rights and priorities, further than to say that, if the law is followed and justice done, their efforts are both wasted, as there will be nothing left for them to fight over.'

The cross-appeal is from the whole judgment and is antagonistic and hostile to the interests of both Brents and Stafford. Cross-appellant did not serve an independent notice of like appeal, but, on the contrary, served notice of an independent and adverse cross-appeal, presenting entirely different questions from those involved in the original appeal and affecting entirely different interests. Nor were the interests of cross-appellant and Brents similarly affected by the judgment. So far as the issue between Mottet and Brents was concerned, Brents was a party defendant, Mottet was plaintiff; Brents was a successful litigant, Mottet was a defeated litigant; and, instead of their interests being similarly affected by the judgment, its effect upon heir interests was...