Pickle v. Smalley

• Decision Date: 04 October 1899
• Citation: 21 Wash. 473,58 P. 581
• Parties: PICKLE v. SMALLEY et al.
• Court: Washington Supreme Court

58 P. 581

21 Wash. 473

PICKLE v. SMALLEY et al.

Supreme Court of Washington

October 4, 1899

Appeal from superior court, Lincoln county; C. H. Neal, Judge.

Action by J. R. Pickle against A. L. Smalley and J. H. Redick for conversion of personal property. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

Myers & Warren, for appellants.

H. N Martin, for respondent.

FULLERTON J.

On the 15th day of June, 1895, the respondent executed and delivered to the appellant Smalley a chattel mortgage on certain personal property to secure the sum of $200, to become due on the 1st day of October following. The mortgage was absolute upon its face, but was given to secure certain advances which Smalley agreed to make to the respondent for the purpose of enabling respondent to care for and harvest a crop of grain growing upon lands which the respondent was farming. On the 3d day of October, 1895, the appellant Smalley, claiming there was due on the note and mortgage the sum of $70.15, caused foreclosure proceedings to be commenced by notice and sale; putting the notice in the hands of appellant Redick, who was then a constable, for execution. The respondent, desiring to contest the right of Smalley to foreclose the mortgage, took steps to have the foreclosure proceedings transferred to the superior court of Lincoln county, and procured an order of the judge for that purpose which order was conditioned that the respondent furnish a bond in the sum of $100. The respondent did not furnish the required bond, whereupon the appellants proceeded with the foreclosure, and sold a part of the mortgaged property. The respondent then brought this action to recover the value of the property, alleging conversion on the part of the appellants, which resulted in a verdict and judgment in favor of the respondent. From that judgment this appeal is taken.

On the trial of the cause the appellant offered in evidence, in justification of the seizure and sale of the property, the original chattel mortgage, and a purported return of the constable, which recited his proceedings had while attempting to foreclose the chattel mortgage. The offered evidence was excluded by the court on the objection of the respondent, and the court's ruling thereon is assigned here as error. The statute relating to the foreclosure of chattel mortgages by notice and sale does not prescribe that any return of the officer's proceedings shall be made, nor does it make such return evidence in any case where the foreclosure is called in question; and it may be doubted whether this return was admissible as evidence to show a foreclosure even had the constable authority to act under the statute. But the ground upon which the court based its ruling was that a constable has no authority to execute the power conferred by the statute, and on this question the counsel for the respective parties have directed their argument. The statute (sections 5871, 5872, Ballinger's Ann. Codes & St.) prescribes that the notice of foreclosure must contain a full description of the property mortgaged together with time and place of sale, and a statement of the amount due, and must be signed by the mortgagee or his attorney, and recites that 'such notice shall be placed in the hands of the sheriff or other proper officer, and shall be personally served in the same manner as is provided by law for the service of a summons. * * *' It is contended that the word 'sheriff,' as used in this connection, is a generic term, and includes all executive officers, a part of whose duty it is to execute the writs of a court, and...