Seargeant v. Russell

• Decision Date: 16 March 1920
• Docket Number: 15667.
• Citation: 110 Wash. 216,188 P. 466
• Court: Washington Supreme Court
• Parties: SEARGEANT v. RUSSELL.

188 P. 466

110 Wash. 216

SEARGEANT v. RUSSELL.

No. 15667.

Supreme Court of Washington

March 16, 1920

Department 1.

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by James E. Seargeant, trustee in bankruptcy for Prentiss Trucker, Bankrupt, against J. W. Russell. Judgment of dismissal, and plaintiff appeals. Reversed and remanded, with directions.

Greene Henry & Hemrich, of Seattle, for appellant.

Russell & Blinn, of Seattle, for respondent.

MAIN, J.

This action is brought by a trustee in bankruptcy to set aside an assignment and deed made by the bankrupt to the defendant. The cause was tried to the court without a jury, and resulted in a judgment dismissing the action. From this judgment the plaintiff appeals. During the month of April, 1917, there were two actions pending against Prentiss Tucker, one in Grant county, and the other in King county. The respondent in this case was the attorney for Prentiss Tucker in each of the cases. The Grant county case was for the purpose of foreclosing a chattel mortgage given to secure a promissory note in the sum of $1,500. The defense pleaded in that case was usury. The case was tried some time in the spring or early summer of the year above mentioned. The trial of the cause took approximately one hour. The trial court took it under advisement, and the attorneys for the respective parties submitted briefs. Some time thereafter the trial court decided the issues in favor of the plaintiff and entered a judgment of foreclosure. The King county case was begun on November 11, 1915, and was upon an account for goods, wares, and merchandise sold and delivered. The answer in this case was a general denial. In this case nothing further has been done, and in the Grant county case nothing was done after the judgment of foreclosure was entered.

On November 22, 1917, Prentiss Tucker, the defendant in each of the two actions above mentioned, executed and delivered to the respondent in this action the following assignment:

'Whereas, an action was begun in the superior court of the state of Washington for King county on the 11th day of November, 1915, wherein Gwinn Investment Company, a corporation, was plaintiff, and Prentiss Tucker was defendant (said action being No. 112046 in the files of said county and court); and

'Whereas, J. W. Russell, of Seattle, Wash., was retained by, and appeared for, the defendant in said action, and is now the attorney for the defendant therein; and

'Whereas, said action is now pending and undetermined and

'Whereas, an action was begun in the superior court of the state of Washington for Grant county on the 6th day of June, 1916, wherein Gwinn Investment Company, a corporation was plaintiff, and Prentiss Tucker and E. E. Slocum were defendants (said action being No. ___ in the files of said county and court); and

'Whereas, J. W. Russell, of Seattle, Wash., was retained by, and appeared for, the defendant, Prentiss Tucker, in said action; and

'Whereas, the said action has been tried, submitted, and decided by said court; and

'Whereas, the said J. W. Russell has had no pay for his services in either of said actions, except the sum of $30 heretofore paid thereon; and

'Whereas, the value of the services so performed by said J. W. Russell in said actions, together with the value of his services to be hereafter performed therein, is far in excess of said sum of $30; and

'Whereas, the said Prentiss Tucker has no property or funds out of which to pay for said services, past and prospective, except his interest in the estate of Edward Tucker, deceased, and the personal property hereinafter mentioned:

'Now, therefore, this agreement witnesseth: That the said Prentiss Tucker does hereby sell, transfer, and convey unto the said J. W. Russell the following items of personal property, the receipt whereof is hereby acknowledged, to wit 17 tablespoons marked 'K'; 17 large forks marked 'K'; 17 small forks marked 'K'; 13 desert spoons marked 'K'; 6 large forks marked 'P'; 6 tablespoons marked 'P'; 2 tablespoons marked 'A. G. Hunt'; 1 tablespoon marked 'A. P.'; 12 coffee spoons (not marked); 11 assorted souvenir spoons (not marked); 1 teaspoon marked 'S'; 1 mustard spoon marked 'Prentiss'; 1 salt spoon (not marked); 1 pair plated sugar tongs; 1 plated pie knife; 2 butter knives marked 'CC'; 1 fork marked 'Eddie Tucker Christmas 1869'; 1 cake knife; one fork marked 'EAW'; 1 large punch ladle; 1 large soup ladle; 13 teaspoons marked 'Prentiss Tucker'; 1 cheese knife in box; 1 heavy perforated spoon in box; and 4 teaspoons marked 'K'.

'And the said Prentiss Tucker hereby sells, assigns, and sets over unto the said J. W. Russell all of his right, title, and interest in and to the estate of Edward Tucker, deceased, together with all money and property, both real and personal, which may hereafter be adjudged to be due him therefrom, and he hereby agrees to execute and deliver to said J. W. Russell any and all papers, deeds of conveyance, or otherwise necessary to transfer the title to any such property or money to said J. W. Russell, according to the terms hereof.

'And the said J. W. Russell hereby agrees to and with the said Prentiss Tucker that he will, in consideration of the foregoing, continue to represent him, said Prentiss Tucker, in said actions, and in each of them, and will do and perform all necessary and proper acts as his attorney in said two actions, and in each of them, as will fully protect the interest of said Prentiss Tucker therein, and he hereby acknowledges that he has received the foregoing bill of sale and assignment in full satisfaction of all such services, past and prospective.

'In witness whereof the parties hereto have hereunto set their hands and seals this 22d day of November, 1917.

'Prentiss Tucker. [L. S.]

'J. W. Russell. [L. S.]'

A quitclaim deed on the same date was also signed and delivered. This quitclaim deed was given as an aid to the assignment. The value of the property covered by the assignment and deed was approximately $1,750. The silverware described in the assignment was delivered to the respondent at the time the assignment was made, and was in his possession at the time of the trial. Most of it was sterling silver, and its value was what it would be worth as bullion. At the time that the assignment and deed were made, Prentiss Tucker was indebted to a creditor or creditors in the sum of approximately $4,000, and he was insolvent. On April 6, 1918, and more than four months after the delivery of the assignment and deed, Prentiss Tucker filed a petition in bankruptcy in the federal court and was adjudged a bankrupt. The appellant in the present action was appointed trustee for the bankrupt, and in that capacity prosecutes this action. The appellant claims that the assignment and deed were fraudulent as against other creditors of Prentiss Tucker.

After certain preliminary questions are disposed of other facts will be stated as they may bear upon the merits. The respondent moves to dismiss the appeal upon two grounds First, that no notice of appeal was served 'either upon the respondent or upon his attorneys'; and, second, upon the ground that no sufficient bond was given to perfect the appeal. The notice of appeal was served within the time specified, but the proof of service was not made until a short time before the cause was to be heard in this court. The proof of service was filed with the clerk of the superior court, and brought here by supplemental transcript. Under the holding in Reynolds v. Reynolds, 42 Wash. 107, 84 P. 579, the...