Murray v. Shoudy

• Decision Date: 12 November 1895
• Citation: 42 P. 631,13 Wash. 33
• Parties: MURRAY v. SHOUDY ET AL. [1]
• Court: Washington Supreme Court

42 P. 631

13 Wash. 33

MURRAY v. SHOUDY ET AL. ^[1]

Supreme Court of Washington

November 12, 1895

Appeal from superior court, Kittitass county; Carroll B. Graves Judge.

Action by David Murray against John A. Shoudy and others. From a judgment for defendants, plaintiff appeals. Reversed.

D. H. Carey and Frank H. Rudkin, for appellant.

H. J Snively and Fred Miller, for respondent Dexter Shoudy.

DUNBAR J.

This was an action brought in aid of a judgment which appellant had procured in the superior court of Kittitass county against respondent John A. Shoudy. The allegations of the complaint were nonsatisfaction of the judgment, the return of nulla bona, the insolvency of the respondent John A. Shoudy and the conveyance by him, joined by his wife, the respondent M. E. Shoudy, of the lands described in the complaint, to the respondent Dexter Shoudy, who is the husband of the other respondent, Hattie Shoudy. It was alleged that the conveyance was made without consideration, and for the purpose and with the design of hindering, delaying, and defrauding creditors etc. The respondents answered, denying the indebtedness of the respondent John A. Shoudy to the appellant, and the other allegations of the complaint in regard to the judgment. They admitted the relationship of the parties and the conveyance of the premises described in the complaint to the respondent Dexter Shoudy, but alleged that the conveyance was made in good faith and for a valuable consideration, in payment of a valid and subsisting indebtedness then due and owing from the respondents John A. Shoudy and M. E. Shoudy to the respondent Dexter Shoudy. On these issues the case was tried by the court, and, at the close of plaintiff's testimony, the court, on motion of the defendants, granted judgment of nonsuit, to which exception was taken. No findings of fact or conclusions of law were made by the court.

The respondents object to the trial of this case de novo in this court for the reason that no findings of fact were made by the court, and that none were requested by the appellant. This court has held, in several cases, that, under the provisions of section 21, p. 130, Laws 1893, no question of fact would be reviewed by this court when exceptions to the findings of fact and conclusions of law had not been taken; but it seems to us that this case presents a different question. The only object of excepting to the findings is to bring the matter to the attention of the court, and the object in requesting the findings is to except to the same for the same reason. There was but one proposition announced by the court in this case, and that, it seems to us, was a legal proposition, viz. that, conceding the evidence introduced by the plaintiff to be true, as a question of law, it was not sufficient to sustain the allegations of the complaint, and no other finding could have been made by the court, and it would have been useless to have requested a finding which would have been simply a repetition of the conclusion already announced by the court. It is also objected, by the respondents, that the statement of facts furnished by the appellant in this case was not such a statement as they should have been required to answer, or have been called upon to amend, and that, therefore, this court will not review the testimony from the fact that the presumption is that the testimony is not all here, it having been reduced to narrative form. This court could not reach such a conclusion without disregarding the certificate of the trial judge, who testifies that the said statement of facts and exhibits attached contain all the material facts, matters, things, and proceedings occurring at the trial.

On the merits, we are of the opinion, from an investigation of the testimony, so far as it was admitted, that the conclusion of...