State v. Superior Court of Jefferson County

• Decision Date: 09 February 1892
• Citation: 3 Wash. 696,29 P. 202
• Parties: STATE EX REL. SCHLOSS ET AL. v. SUPERIOR COURT OF JEFFERSON COUNTY.
• Court: Washington Supreme Court

29 P. 202

3 Wash. 696

STATE EX REL. SCHLOSS ET AL. v. SUPERIOR COURT OF JEFFERSON COUNTY.

Supreme Court of Washington

February 9, 1892

Application of Schloss, Ochs & Co. and others for a writ of prohibition to Morris B. Sachs, judge of the superior court of Jefferson county. Granted.

Ballinger & Ballinger, for petitioners.

Trumbull & Plumley, for respondent.

DUNBAR J.

It appears from the petition of the relators and accompanying affidavit that the relators were judgment creditors of B. Levy, claiming attachment and execution liens on $1,536.70 proceeds of sale of the property of the said B. Levy, by receiver, appointed by the court, to take possession of said property. That the said sum of $1,536.70 had been turned into the registry of the court, and the receiver discharged. That there were not sufficient funds to pay all the judgments against said B. Levy; and that these relators and other plaintiffs on the 21st day of November, 1891 appeared in said receivership proceeding, and by petition to said superior court asked for a distribution of the said funds, and with said petition filed an agreed statement of facts by which the court could determine the priority of the liens. That after a consideration of said petition and statement said court, on December 7, 1891, duly rendered a judgment by which it was ordered and adjudged by the court that said fund be applied (1) to the payment of Tootle, Hosea & Co. in the sum of $234.60; (2) to a payment of the judgment of the State Bank of Washington, in the sum of $1,011.33 and costs, and that the balance of said fund be paid on the judgment of Joseph Levy. That by the terms of said judgment there was nothing left to apply on the respective judgments of these relators. This judgment and order these relators duly excepted to, which exceptions were allowed, and the relators thereupon in open court gave notice of appeal. That thereafter, on December 9, 1891, the relators filed with the clerk of said superior court an undertaking for costs on appeal in the sum prescribed by law, and for stay of proceedings on said judgment and order in the sum of $2,600, that being the amount fixed by said judge for said bond, and that the said bond was duly approved by the clerk of said court. That notwithstanding said appeal the said State Bank of Washington orally applied to the said judge, MORRIS B. SACHS, for execution of the said judgment appealed from by the payment to the said bank of the amount so ordered to be paid to it. That, upon being informed thereof, one of the relators' attorneys appeared before said judge, and objected to the consideration of any question in relation thereto, and to the execution of said judgment, because said superior court had no jurisdiction thereof or of said fund; and the said judge announced that he would take cognizance of and consider said application, notwithstanding the appeal of relators to the supreme court, and that he threatened to proceed under the application of said bank, and to enforce said order appealed from, and to disburse said fund thereunder. Thereafter, it appearing to this court that the petitioners had no speedy, adequate, or sufficient means of redress, and that the appeal would be rendered useless if the said judge, in advance of the decision of this court, disbursed the said funds, this court did on the 11th day of January, 1892, issue to said MORRIS B. SACHS, judge of the superior court of Jefferson county, an alternative writ of prohibition, prohibiting him from interfering with said fund, and citing him to show cause to this court why this writ should not be made perpetual. To this writ the said MORRIS B. SACHS, judge aforesaid, has made the following return. After admitting the judgment the answer proceeds as follows: "(2) He admits that oral application was made to him for the payment to the State Bank of Washington of the amount awarded to it under the aforesaid judgment, and that the attorneys for said bank proposed to show to the court that no appeal had been perfected by the said Schloss, Ochs & Co., Jordan & Ferguson, Danziger Bros., and Kahn Bros. & Co., by the filing of proper bonds, and your respondent stated that on filing the proper application he would consider it, and that attorneys for petitioners, when notified of the oral application, appeared and orally objected to the hearing of the application. (3) He denies that at that time, or at any time since then, he has threatened to pay the said judgment of the State Bank of Washington v. Benjamin Levy out of the funds in the registry of this court, so as to defeat the appellate jurisdiction of this court, and says that he holds the law to be that the judgment of the superior court could be enforced unless the proper bond had been filed for a stay of proceedings; and upon a proper application presenting that point it was his duty to consider it. (4) He denies that at that time, or since that date, he has threatened to pay said money out of the registry of his court in case a good and sufficient stay-bond was filed, or that he would do more than consider the application."

It is claimed by the respondent that a denial of the facts charged in the application for a writ of prohibition is fatal to the...