Schwabacher Bros. & Co. v. Schade & Parshall Co.

• Decision Date: 07 January 1918
• Docket Number: 14099.
• Court: Washington Supreme Court
• Parties: SCHWABACHER BROS. & CO., Inc., v. SCHADE & PARSHALL CO. MACOMBER v. FULLER-QUIGG CO.

169 P. 783

99 Wash. 271

SCHWABACHER BROS. & CO., Inc., v. SCHADE & PARSHALL CO.

MACOMBER v. FULLER-QUIGG CO.

No. 14099.

Supreme Court of Washington

January 7, 1918

Department 1. Appeal from Superior Court, King County; John S. Jurey Judge.

Action by Schwabacher Bros. & Co., Incorporated, against the Schade & Parshall Company, in which L. H. Macomber was appointed receiver of the Schade & Parshall Company. From an order denying an application to vacate an order setting aside a temporary restraining order against the prosecution of an action by the Fuller-Quigg Company, the receiver appeals. Affirmed.

Leopold M. Stern, of Seattle, for appellant.

Reeves & Reeves, of Wenatchee, for respondent.

PARKER J.

This is an appeal by the receiver of Schade & Parshall Company from an order of the superior court for King county denying an application of the receiver for the vacation of an order setting aside a temporary restraining order, which order setting aside the temporary restraining order was, in effect a denial of an application of the receiver for an injunction. As we proceed, we think it will appear that this is nothing more than an attempt to review and reverse the action of the superior court in denying an application for an injunction.

The controlling facts may be summarized as follows: On December 8, 1916, Schwabacher Bros. & Co., it being engaged in the wholesale merchandise business at Seattle, in King county commenced an action in the superior court for that county against Schade & Parshall Company, it being engaged in the retail business at Wenatchee, in Chelan county, seeking recovery upon a promissory note executed by the latter. The action was instituted in King county because of a provision in the note stipulating that action upon the note might be had in that county. Schwabacher Bros. & Co. also prayed for the appointment of a receiver for Schade & Parshall Company upon the ground of the insolvency of that company. On December 22, 1916, the superior court for King county entered its order in that action appointing L. H. Macomber temporary receiver of Schade & Parshall Company, and thereafter made such appointment permanent. On December 22, 1916, the same day that the temporary receiver was appointed by the King county court, Fuller-Quigg Company commenced an action in the superior court for Chelan county against Schade & Parshall Company seeking foreclosure of a chattel mortgage executed by that company upon its stock of merchandise in Wenatchee to secure certain indebtedness due or to become due from it to Fuller-Quigg Company. On January 10, 1917, Macomber, as receiver for Schade & Parshall Company petitioned the superior court for King county, in the action in which he was appointed receiver, for a temporary restraining order and an injunction restraining and enjoining Fuller-Quigg Company from prosecuting its action to foreclose its chattel mortgage in the superior court for Chelan county proceeding upon the theory that it should be compelled to litigate its claimed rights under its chattel mortgage in the receivership proceedings in King county. On the same day without notice to Fuller-Quigg Company, the superior court for King county issued a temporary restraining order, returnable January 20, 1917, bond having been given by the receiver as required by the court, temporarily restraining Fuller-Quigg Company from prosecuting its chattel mortgage foreclosure action in the superior court for Chelan county. The matter came on for hearing and was heard on January 20th, when the court took under advisement the question of whether or not it would issue an injunction as prayed for by the receiver. No order was...