Pacific Coast Biscuit Co. v. Oswald

• Decision Date: 08 January 1914
• Citation: 77 Wash. 352,137 P. 483
• Court: Washington Supreme Court
• Parties: PACIFIC COAST BISCUIT CO. v. OSWALD (PERRY, Garnishee.

137 P. 483

77 Wash. 352

PACIFIC COAST BISCUIT CO. v. OSWALD (PERRY, Garnishee.

Supreme Court of Washington

January 8, 1914

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

Action by the Pacific Coast Biscuit Company, a corporation, against William Oswald, defendant, and I. D. Perry, garnishee. From a judgment for plaintiff, the garnishee appeals. Reversed, and garnishment proceedings ordered dismissed.

Jas. C. McKnight, of Seattle, for appellant.

MOUNT J.

The appellant is a garnishee defendant in the case of Pacific Coast Biscuit Company v. William Oswald. This appeal is prosecuted from a judgment of the superior court for King county, finding that certain property in the possession of the appellant was the property of William Oswald.

The respondent appeared in this court and moved to dismiss the appeal. This motion was denied. The respondent has filed no brief on the merits, so that we are not advised of his position except as stated by the appellant.

The facts in the case were stipulated. There is no dispute upon the facts. It appears from the stipulation that in April 1911, William Oswald was indebted to the appellant, I. D Perry, in the sum of $450. On that date Mr. Oswald, in order to secure the payment of this indebtedness, executed a chattel mortgage upon a certain stock of goods and fixtures belonging to him. The mortgage was made in good faith and without any desire to hinder or delay creditors. The mortgage was properly acknowledged and verified and delivered to the mortgagee, Mr. Perry. It was not filed for record until September 7, 1911. Between the date of the execution of the mortgage and the date it was filed, several persons became creditors of Mr. Oswald. On the day the mortgage was filed, viz., September 7, 1911, Mr. Perry proceeded to foreclose the same by notice and sale under the statute. The sheriff took possession of the stock of goods and fixtures, and thereafter regularly sold the same. At the sheriff's sale Mr. Perry became the purchaser for the sum of $362.92, which it is agreed was the reasonable value thereof. Mr. Perry has ever since been in possession of the goods, selling and replacing the same with other goods. Thereafter, on the 6th day of November, 1911, the Pacific Coast Biscuit Company secured a judgment against Mr. Oswald upon debts that were contracted between the month of April and the month of September, 1911. After this judgment was obtained, a writ of garnishment was served upon Mr. Perry. This writ was based upon an affidavit that Mr. Perry was indebted to Mr. Oswald, or had property in his possession belonging to Mr. Oswald. Mr. Perry thereupon denied that he was indebted to Mr. Oswald, or that he had any property in his possession belonging to Mr. Oswald. Upon these facts the trial court concluded that the chattel mortgage executed in April and filed in September, 1911, was void as to creditors between those dates, and therefore the mortgage foreclosure was void and the property obtained by Mr. Perry under the foreclosure was the property of Mr. Oswald, and a judgment was thereupon entered ordering the property in the possession of Mr. Perry to be turned over to the sheriff to satisfy the judgment obtained by the Pacific Coast Biscuit Company against Mr. Oswald.

Apparently the respondent and the trial court reply upon the case of Willamette Casket Co. v. Cross Undertaking Co., 12 Wash. 190, 40 P. 729. That was a case where a chattel mortgage had been given on December 22, 1893, and was not recorded until May 4, 1894. In the meantime an action was ininstituted by other creditors of the mortgagor, and on May 7th a receiver was appointed and took possession of the property of the mortgagor. The court in that case construed the provisions of section 3660, Rem. & Bal. Code, and held that an unrecorded...