Plass v. Morgan

• Citation: 36 Wash. 160,78 P. 784
• Parties: PLASS v. MORGAN (METZGER, Garnishee.
• Decision Date: 12 December 1904
• Court: United States State Supreme Court of Washington

78 P. 784

36 Wash. 160

PLASS v. MORGAN (METZGER, Garnishee.

Supreme Court of Washington

December 12, 1904

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Charles H. Plass against W. L. Morgan, with L. A. Metzger as garnishee. From a judgment in favor of the garnishee plaintiff appeals. Reversed.

F. S Blattner, for appellant.

F Campbell, for respondent.

DUNBAR J.

Appellant commenced this action to recover judgment against the defendant, and in such action caused a writ of garnishment to be served on the respondent, who answered that he had no property or effects belonging to the defendant. The plaintiff controverted said answer by the following affidavit: 'CHARLES H. PLASS, BEING FIRST DULY SWORN, oN oath dEPOSes and says: that he is not satisfied with the answer of the garnishee herein, and has good reason to believe and does believe that the answer of said garnishee is incorrect in this: that on the ___ day of March, 1903, the defendant herein was engaged in the business of conducting a boarding house and restaurant; that on said day the garnishee defendant herein purchased all the goods, wares, and merchandise in bulk of said defendant for cash, and paid the said defendant, therefor; that said garnishee defendant, before paying said defendant, did not demand of and receive from said defendant a sworn statement containing the names and addresses of the creditors of said defendant, and did not pay or see that the purchase money of said property or any part thereof was applied to the payment of the bona fide claims of the creditors of said defendant; that said stock of goods, wares, and merchandise was at said time fairly and reasonably worth the sum of $600; that at said time affiant was a creditor of said defendant for the sum sued upon herein, the same being on account of goods, wares, and merchandise sold and delivered to said defendant in the conduct of the aforesaid business.' The garnishee defendant demurred to the reply and affidavit of the plaintiff on the following grounds, to wit: '(1) The said reply and affidavit does not state facts sufficient to controvert the answer of said L. A. Metzger, the garnishee in this case. (2) That it appears upon the face of said affidavit and reply that the law of 1901, applicable to the sale of merchandise in bulk, does not apply in this case.' This demurrer was sustained, the writ of garnishment dismissed, and the garnishee discharged, with judgment for costs. Judgment was entered in favor of the plaintiff and against the defendant for the sum of $184. From the judgment of the court sustaining the demurrer and dismissing the garnishment proceeding, this appeal was taken.

So that the only question that is presented is whether or not section 5346, Pierce's Wash. Code, applies to a transaction of the kind set forth in the plaintiff's controverting affidavit. The section is as follows: 'It shall be the...