Plant v. Carpenter
| Decision Date | 20 July 1898 |
| Citation | 53 P. 1107,19 Wash. 621 |
| Parties | PLANT v. CARPENTER, SHERIFF. |
| Court | Washington Supreme Court |
Appeal from superior court, Lewis county; A. L. Miller, Judge.
Suit by Cena Plant against E. F. Carpenter, sheriff. There was a decree for defendant, and plaintiff appeals. Affirmed.
Edward F. Hunter, for appellant.
Reynolds & Stewart, for respondent.
Suit by plaintiff, Cena Plant, to enjoin the sheriff of Lewis county from executing a writ of restitution issued in favor of the purchaser at a sale upon a decree of mortgage foreclosure, and to adjudge the writ void as against the plaintiff. On the 20th of January, 1896, judgment was rendered by the superior court of Lewis county in favor of the Commercial State Bank of Chehalis, plaintiff, against Salem Plant, for the sum of $765.33, including costs, and for a foreclosure of a mortgage described in the complaint, and sale of the premises to satisfy the judgment; and on the 29th of February, 1896, the mortgaged premises were sold under the judgment, and the mortgagee became the purchaser. The complaint alleges that the sheriff is about to execute the writ and dispossess plaintiff, who is the wife of said Salem Plant, who executed the mortgage. It is also alleged that the premises mortgaged by Salem Plant were the homestead of Salem Plant and this plaintiff and their family, and that due selection thereof had been made by plaintiff, and notice given, and the facts are fully stated upon which plaintiff founds the claim of homestead. The answer of the sheriff denied that the premises were the homestead of plaintiff and her husband, and averred that the mortgaged premises were the separate property of the husband, Salem Plant, and that no selection of the homestead had been made. The answer also set up a plea of former adjudication of the homestead rights of plaintiff in the mortgaged premises. It is to this plea that we shall confine our attention.
The proof taken in the superior court and the record shows that after the decree of foreclosure in the suit between the Commercial State Bank, as plaintiff, and Salem Plant, as defendant, the plaintiff in this action intervened, and set up fully in her complaint in intervention all the facts constituting her right to the homestead, and also demanded that the premises be declared a homestead, and protected by the court. The plaintiff in the mortgage foreclosure suit was regularly summoned to answer the complaint in intervention, and the plaintiff therein appeared, and filed its motion that the complaint be dismissed, because it was filed without leave of court, and because it did not state facts authorizing the intervention, and the motion was sustained, with leave to the intervener to refile her complaint, which was done instanter and the plaintiff thereupon renewed its motion against the complaint because it did not state facts sufficient to constitute a ground for intervention, which objection the court sustained; and the intervener, Cena Plant, requested permission to file an amended complaint, which was granted and she was allowed 10 days in which to file and serve an amended intervening complaint. It appears that intervener did not file the amended complaint, as directed by the order of the court; and thereafter the court, on the 26th day of December, 1895, adjudged that leave having been given intervener to serve and file an amended complaint in intervention, and her attorney having stated in open court that the intervener would not further appear in the action and the plaintiff demanding default against the intervener such default was granted and entered; and thereafter a final decree of foreclosure was rendered in the cause, in which it was adjudged that the defendants, and all persons claiming under them after the commencement of the action, be forever barred and foreclosed of all right, title, interest, and equity of redemption in the mortgaged premises, or any part thereof, and that the plaintiff recover from the said Cena Plant its costs incurred or taxable, in consequence of her appearance and pleading in the action, and that execution issue therefor. The intervener in the foreclosure suit filed her bill in the nature of a cross complaint against plaintiff, and set up the facts constituting grounds of action, alleging the same cause of action and demanding the same relief that she demands in this suit. In the former action the objection to the complaint in intervention, which was in the nature of a demurrer,...
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