Stringfellow v. Stringfellow
| Decision Date | 19 February 1959 |
| Docket Number | No. 34922,34922 |
| Citation | 335 P.2d 825,53 Wn.2d 639 |
| Parties | William Ewing STRINGFELLOW, Respondent, v. Virgil O. STRINGFELLOW, Appellant. |
| Court | Washington Supreme Court |
Floyd M. Reischling, Byron D. Coney, Seattle, for appellant.
Riddell, Riddell & Williams, Seattle, for respondent.
This is an appeal from a summary judgment for the plaintiff in an action to recover personal property.
From 1949 through 1955, the appellant, Virgil O. Stringfellow, who was defendant below, and his wife made annual purchases with community property funds of eight $1,000 United States savings bonds, Series E, and caused them to be issued in the name of their minor son, William Ewing Stringfellow, the plaintiff in this action and respondent here. In 1956, the father and mother paid for seventy-five shares of common capital stock of the Seattle-First National Bank and caused the stock certificate to be registered in the name of their minor son. The admitted intent of the parents was to make a gift to their son, but the father retained possession of the stock certificate and the bonds. He did this as bailee with the purpose of keeping them safe for his minor son. He manifested this purpose in a letter, which we set out:
'Christmas 1957
'Dear Ewing:
'May God bless and watch over you.
'All my love
'Dad'
(Italics ours.)
It 1958 in the superior court of King county, the wife obtained a decree of divorce from the appellant. Subsequently, she commenced this action as guardian ad litem for her son to recover possession of the stock certificate and bonds from her ex-husband. During the pendency of the action, the son attained his majority and was substituted as party plaintiff. There is no controversy over the eighty-eight shares of bank stock mentioned in the letter quoted.
Respondent moved, with supporting affidavits, for a summary judgment under Rule of Pleading, Practice and Procedure 19, 34A Wash.2d 81, as amended, effective November 1, 1955. No controverting affidavits were filed by appellant. The trial court granted the motion.
Appellant contends the summary judgment was improperly granted for the reason that his cross-complaint raised genuine issues as to material facts as effectively as counter affidavits would have done.
Rule of Pleading, Practice and Procedure 19, supra, provides, inter alia:
* * *' (Italics ours.)
Appellant's answer and cross-complaint were verified by his attorney on belief only. Such a verification fails to raise an issue as contemplated by the rule. Under these circumstances, respondent's affidavit must be accepted as stating the established facts of the case. If respondent's affidavit could be controverted by a pleading verified on belief, a motion for a summary judgment would amount to no more than a judgment on the pleadings or a motion to dismiss. We hold that the italicized language in the rule is controlling here. Shotwell v. United States, D.C., 163 F.Supp. 907. We find no defect in the procedure followed by the court in granting the summary judgment.
On the merits, the appellant claims there was no gift of stock because he did not deliver the stock certificate to the respondent. We do not agree. The father and mother, with intent to make a gift to the son, caused the issuance of the stock certificate in the son's name. The father, who never had title to the stock, retained possession of the stock certificate as bailee for safekeeping only. The dividends were paid by checks in the son's name and deposited in his account. RCW 23.01.010 provides, inter alia:
As used in this chapter, * * *
'(8) A 'certificate of stock' is a written instrument signed by the proper corporate officers, as required by this chapter, and evidencing...
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