Robert Morton Organ Co. v. Armour

• Decision Date: 23 November 1934
• Docket Number: 24541.
• Citation: 38 P.2d 257,179 Wash. 392
• Parties: ROBERT MORTON ORGAN CO. v. ARMOUR et al.
• Court: Washington Supreme Court

38 P.2d 257

179 Wash. 392

ROBERT MORTON ORGAN CO. v. ARMOUR et al.

No. 24541.

Supreme Court of Washington, En Banc.

November 23, 1934

Appeal from Superior Court, Grays Harbor County; Wm. E. Campbell Judge.

Action by the Robert Morton Organ Company against Eva L. Armour and others. From the judgment, plaintiff appeals. On application to recall remittitur and to require the superior court to enter judgment in accordance with mandate.

Remittitur recalled, and superior court required to enter judgment in accordance with mandate.

See also, 173 Wash. 462, 23 P.2d 887; 27 P.2d 1119.

F. L Morgan, of Hoquiam, for appellant.

O. M Nelson and W. H. Abel, both of Montesano, for respondents.

MILLARD, Justice.

The Robert Morton Organ Company, as vendor, brought an action against the successors in interest of the vendee to recover possession of an organ sold by the plaintiff vendor to the 'Montesano Theatre Corp.,' a copartnership, under a conditional sale agreement. The defense interposed was that the plaintiff's presentation of its claim against the estate of a deceased member of the copartnership 'was an election to hold the estate and waive all interest in the property, in which event the title to the property became absolute in the vendee,' and the subsequent purchasers bought the property free and clear of any claim by the plaintiff. The defense was further urged that the contract under which the organ was purchased from the plaintiff was a chattel mortgage, and, as it was not acknowledged and was not accompanied by the mortgagor's affidavit of good faith it was ineffective 'as a valid mortgage against subsequent purchasers.'

The trial court was of the view that plaintiff's election, following rejection of its claim against the estate of G. W. Armour, deceased, to bring an action against the estate to recover the unpaid balance of the purchase price of the organ, constituted an abandonment of plaintiff's claim of title to the organ. The action was dismissed as to defendants Srigley and wife, M. & E. Theatres, Inc., and Eva L. Armour, individually, and as executrix of the estate of her deceased husband, G. W. Armour. Defendant W. P. Armour was dead at the time of the trial of the action, and there was no substitution of party as to him. Defendant Kycek made no appearance, and an order of default was entered against him. On plaintiff's appeal from the judgment of dismissal, we reversed the judgment and remanded the cause, 'with direction to the trial court to enter judgment foreclosing the mortgage.' Robert Morton Organ Co. v. Armour, 173 Wash. 462, 23 P.2d 887, Id. (Wash.) 27 P.2d 1119. Upon denial of the petition of respondents for a rehearing, the remittitur was sent down to the superior court, which entered the following decree of foreclosure in favor of plaintiff organ company:

'That a decree of foreclosure of the mortgage Before referred to is hereby entered and against the parties thereto, as and for a partnership, to-wit: consisting of Glen W. Armour, Eva L. Armour, W. P. Armour and Joseph L. Kycek, said partnership being variously known as Montesano Theatre Corp. and Armour Theatre Co., said judgment to be a judgment against the copartnership and the copartnership property and against the members of the copartnership served, to-wit: Eva L. Armour and Joseph L. Kycek, individually, said judgment * * * amounting * * * in all, being the principal and interest of said chattel mortgage to the date of judgment, to the sum of Three Thousand, Six Hundred Twenty-Nine and 38/100 ($3,629.38) dollars, together with the sum of $300.00 as attorney's fees, and costs taxed at $92.30.

'It is further ordered: That the M. & E. Theatres, Inc., and Lola J. Srigley, forthwith return and restore the organ referred to in this action to the place from which it was taken, in as good a state and condition as when it was removed, and within a reasonable time, and not later than ten days from the date of this order, unless further time be granted by this court. In case such property is not restored, of which fact the return of the sheriff of Grays Harbor County that it cannot be found in said county at the end of ten days from the date hereof, shall be sufficient evidence, then judgment is entered against the said M. & E. Theatres, Inc., a corporation, and Lola J. Srigley, as for and on account of the conversion and sale of said mortgaged property, * * * in the sum of Twenty-five hundred and no/100 ($2,500.00) dollars, which value has heretofore been found by this court, with interest thereon from the date the said Srigleys acquired said property, to-wit: May 31st, 1930, with costs, the same to constitute a personal judgment against them severally.

'It is further ordered, adjudged and decreed: That the Sheriff forthwith proceed to search for and seize said property wherever found and proceed with the foreclosure and sale thereof, in accordance with law, and that if said property be levied upon and sold, as provided by law, the proceeds thereof shall apply upon the judgment heretofore referred to. But in case said property shall not be found within Grays Harbor County, within ten days from the date hereof * * * then this decree shall operate as a personal judgment against the several defendants in the amounts heretofore set out. Any payments made hereon toward the satisfaction of said chattel mortgage shall inure to the benefit of each of the several defendants.

'It is further ordered, adjudged and decreed: That in case no property shall be found sufficient to satisfy the judgment in this action, of which the return of the Sheriff shall be sufficient proof, then the judgment heretofore entered against the partnership shall operate as a judgment against the estate of G. W. Armour, and the defendant, Eva L. Armour, as executrix, is hereby ordered to satisfy said judgment, with costs and attorney's fees in so far as the same is unsatisfied by the remaining partners, out of the estate of Glen W. Armour, deceased, in due course of administration in accordance with the law with reference to administration of estates. Costs of this action to be taxed against all defendants appearing.'

On the ground that the foregoing decree is contrary to the mandate of this court, respondents, by appropriate and timely application therefor, pray that the remittitur be recalled and that the superior court be required to enter judgment in accordance with the mandate.

Counsel for respondents contends 'that under this decision of this court that all that the trial court could do now was to enter a judgment foreclosing the mortgage in rem, and that no personal judgment can be entered against any of the defendants.'

The mandate of this court is binding on the superior court, and must be strictly followed. We reversed the judgment and remanded the cause, 'with direction to enter judgment foreclosing the mortgage.' That order is conclusive. If the judgment entered by the superior...