Peerless Pacific Co. v. Burckhard

• Decision Date: 11 March 1916
• Docket Number: 12932.
• Citation: 90 Wash. 221,155 P. 1037
• Court: Washington Supreme Court
• Parties: PEERLESS PACIFIC CO. v. BURCKHARD.

155 P. 1037

90 Wash. 221

PEERLESS PACIFIC CO. v. BURCKHARD.

No. 12932.

Supreme Court of Washington

March 11, 1916

Department 2. Appeal from Superior Court, Grays Harbor County; Ben Sheeks, Judge.

Garnishment proceedings by the Peerless Pacific Company against the Girard Fire Insurance Company, in which E. Burckhard intervened as plaintiff. From a judgment sustaining the garnishment, and denying the intervenor's right of exemptions, the latter appeals. Affirmed.

A. Emerson Cross, of Aberdeen, for appellant.

T. H McKay, of Aberdeen, for respondent.

MAIN J.

This action involves the question of exemptions. The material facts may be briefly stated as follows: On May 3, 1913, E Burckhard was divorced from his then wife by a decree of the superior court for Chehalis county. On June 30, 1913 Burckhard purchased certain lots or tracts of land in Aberdeen, Wash., on contract. On August 25, 1913, and within six months after the divorce decree was entered, Burckhard and Elsie Warwick were married at Westminster, British Columbia. Prior to this marriage Burckhard had been engaged in the plumbing business in Aberdeen, and on the day following the marriage, the parties thereto returned to Aberdeen, where Burckhard continued his plumbing business. They went to Westminster for the sole purpose of being married, expecting immediately to return to Aberdeen. On or about October 1, 1913, Burckhard and wife entered into possession of the real estate which he had purchased, and occupied the house erected thereon. The house and household goods were insured under a policy issued by the Girard Fire Insurance Company. On April 18, 1914, the Peerless Pacific Company recovered a judgment against Burckhard in the sum of $432.19. On or about the 28th day of April, 1914, the dwelling house and a portion of the household goods were damaged by fire. On May 1, 1914, the Peerless Pacific Company caused a writ of garnishment to be issued and served upon the insurance company, the purpose of this garnishment being to reach the money due from the insurance company to Burckhard by reason of the fire. On July 2, 1914, Burckhard remarried Elsie Burckhard at Aberdeen, Wash. On July 7 1914, Burckhard filed a declaration of homestead upon the real estate. Thereafter he intervened in the garnishment proceeding and claimed the proceeds of the insurance as exempt. Prior to the date of the fire a child was born as a result of the union occasioned by the marriage ceremony performed at Westminster, British Columbia. After the issues had been framed upon the complaint in intervention, the case came on for trial on November 27, 1914, and resulted in a judgment sustaining the garnishment, and denying the right of Burckhard to exemptions. From that judgment Burckhard appeals.

From the facts stated it appears that prior to the time the fire occurred, Burckhard, his wife, and child, by virtue of the Canadian marriage, were residing together, using the property which was damaged or destroyed by fire. After the writ of garnishment had been served, and prior to the time when the case came on for trial, another marriage ceremony was performed, about the validity of which there is no question.

The first question is whether Burckhard, at the time the fire occurred, was entitled to a homestead and personal property exemptions, as the head of a family. The parties having gone out of this jurisdiction for the sole purpose of having a marriage ceremony performed, and immediately thereafter returning, having had no intention of changing their domicile, the marriage ceremony thus performed is in law void, and the issue of such marriage is not legitimate. State v. Fenn, 47 Wash. 561, 92 P. 417, 17 L. R. A. (N. S.) 800; Pierce v. Pierce, 58 Wash. 622, 109 P. 45. This proposition, apparently, is not seriously controverted.

But it is contended that Burckhard was the head of a family, or a householder, notwithstanding the void marriage, because he had residing with him his minor child. Section 553, Rem. & Bal. Code, defines the head of a family, so far as here material, as being:

'Every person who has residing on the premises with him or her, and under his or her care and maintenance * * * his or her minor child. * * *'

Section 565 defines a householder as:

'Every person who has residing with him or her, and under his or her care and maintenance, * * * his or her minor child. * * *'

The question then is whether the word 'child,' as used in these statutes, includes a child not legitimate. If it does then Burckhard was a householder and the head of a family, and was entitled to exemptions, as he was living with and supporting the child and its mother. Where the word 'child,' or 'children,' is used in a statute, without qualifying words, and where the context does not show a contrary meaning, the general, if not the universal, construction is that the word 'child,' or 'children,'...