Simon Piano Co. v. Fairfield

• Decision Date: 26 July 1918
• Docket Number: 14703.
• Citation: 103 Wash. 206,174 P. 457
• Parties: SIMON PIANO CO. v. FAIRFIELD.
• Court: Washington Supreme Court

174 P. 457

103 Wash. 206

SIMON PIANO CO. v. FAIRFIELD.

No. 14703.

Supreme Court of Washington

July 26, 1918

Department 2.Appeal from Superior Court, Spokane County; Bruce Blake Judge.

Action by the Simon Piano Company against H. B. Fairfield.From judgment for defendant, plaintiff appeals.Reversed, with directions to enter judgment in favor of plaintiff.

A. E. Gallagher, of Spokane, for appellant.

D. R Glasgow, of Spokane, for respondent.

CHADWICK J.

Appellant brought this action to recover possession of a piano alleged to be of the value of $260.The appellant sold the piano to one Bonnie Raymond on October 7, 1914, under a conditional sales contract.An action was begun in July, 1915, against Bonnie Raymond and the premises then occupied by her under the abatement law (chapter 127,Laws 1913).Appellant was not made a party to the action.The court found the place to be a nuisance, and directed that it be closed, and that all personal property therein contained be seized and sold to satisfy the costs of the proceeding and a fine of $300, which had been assessed against the defendants.At the inception of the proceeding the court issued a restraining order commanding and prohibiting all persons from in any way interfering with the property.Appellant did not know of the restraining order until the 12th day of August, the day upon which a final decree was rendered.On August 11th, Bonnie Raymond being in default under her conditional sales contract, one Emil Simon, president of appellant company, took possession of the piano.On the next day, August 12th, the prosecuting attorney filed an information against Simon, and caused him to be brought before the court to answer for contempt; it being charged that he had removed the piano in defiance of the order of the court.Simon defended upon the ground that the court had not obtained jurisdiction over the proper of the appellant, or of the appellant.The court having ruled to the contrary, Simon returned the piano to the sheriff, who afterwards sold it under the decree which had been previously rendered.At the sale the piano was purchased by the defendant.An agent of appellant stood by and asserted its interest in the property.After a demand and refusal on the part of the respondent to deliver the property, this action was brought to recover possession, or, in the event that possession could not be had, for the value of the piano.

While it may well be questioned whether the court can impound and sell property in an abatement proceeding, when it is held by a defendant under a conditional sales contract, we shall for the purposes of this case assume that it may be so; but, so assuming, it does not follow that the court obtained jurisdiction of the person or the property of the appellant.The statute(sections 3670,3671, Rem.Code) is not impliedly repealed by the abatement law.The right of property under a conditional sales contract is as secure as it was before the passage of that law; and, granting that property which offends may be seized and sold or destroyed, the court may not dispose of it, or work its destruction, without giving the owner his day in court.We think our holding is well within the principle declared in State ex rel. Kern v. Emerson,90 Wash. 565, 155 P. 579, L. R. A. 1916F, 325; wherefore, in the absence of a showing that the appellant was charged with a knowledge of the use of its property and given an opportunity to be heard in defense of the use to which it was put, the abatement law being penal in its nature, we think it would be carrying the law beyond its legitimate inferences or its fair intentions to hold that an owner is bound by a proceeding to which it has not been made a party.

But it is urged that the appearance of Emil Simon in response to the rule to show cause why he should not be filed as for contempt was a sufficient appearance in the action, and that his return of the property was a voluntary submission to the decree of the court.The trial judge made written opinion saying:

'The plaintiff now seeks to recover the piano, or its value, on the ground that the sale was void, in that the court had no jurisdiction to order it.However, I think plaintiff is estopped by his conduct from setting up want of jurisdiction.It knew before sale that the court was undertaking to exercise jurisdiction over the piano.It acquiesced in the validity of the decree by returning the piano upon Mr. Simon being charged with contempt.In 16 Cyc. at page 795, it is said: 'Where a party with knowledge of the facts assents to or participates in judicial proceedings, without objection, he is bound by such proceedings an against one who has been misled by his conduct.'The following cases from our Supreme Court bear out this rule: Daly v. Everett Pulp & Paper Co.,31 Wash. 252[71 P. 1014];Bank of California v. Puget Sound Loan Trust & Banking Co.,20 Wash. 636[56 P. 395];Masterson v. Union Bank & Trust Co.,86 Wash. 560[150 P. 1126, L. R. A. 1918A, 531];Schroeder v. Hotel Commercial Co.,84 Wash. 685[147 P. 417];Douthitt v. MacCulsky,11 Wash. 601[40 P. 186].The plaintiff having, through the actual knowledge of its manager, notice that the court was assuming jurisdiction over the piano, was obliged to either establish its overship by defending its right to it as a defense in the contempt proceeding, or else lay claim to it in the hands of the sheriff, under section 573 et seq. of R. & B. Codes & Statutes.Judgment for defendant.'

But we think the burdent put upon the appellant by the court is greater than the law demands.The appearance--granting that the appearance of the president of appellant would bind appellant--under the coercive process of the law was neither an assent to nor a participation in the main case.In all of the cases cited by respondent the appearance was made before final decree and while the proceeding was still judicial, in the sense that judgment or decree of the court was unpronounced and subject to further proceedings, so that the right of the appearing party could have been granted or denied in the judgment pr decree.

Nor should the appellant be held to the obligation 'to either establish its ownership by defending his right to it [the piano] as a defense in the contempt proceeding, or else lay claim to it in the hands of the sheriff, under section 573 et seq. of R. & B. Codes and Statutes.'

The question of ownership was not the issue, and before the court could hold the appellant to strict proof of ownership it must have reopened the...