Sumner Iron Works v. Wolten

• Decision Date: 28 January 1911
• Citation: 61 Wash. 689,112 P. 1109
• Parties: SUMNER IRON WORKS v. WOLTEN.
• Court: Washington Supreme Court

112 P. 1109

61 Wash. 689

SUMNER IRON WORKS v. WOLTEN.

Supreme Court of Washington

January 28, 1911

Department 2. Appeal from Superior Court, Whatcom County; John A Kellogg, Judge.

Action by the Sumner Iron Works against Paul A. Wolton, receiver of the S.D. Lumber Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

Cooley & Horan and R. Mulvihill, for appellant.

Whitcomb & Montfort, for respondent.

MORRIS J.

On February 10, 1909, the Sumner Iron Works sold to the S.D Lumber Company, under a conditional bill of sale, certain mill machinery. The bill of sale contained the usual provision that title should remain in the Sumner Iron Works until the property was wholly paid for, and that it should have the right to the possession of the property upon default in the payments, retaining the amount paid as the rental use and value of the property. The sale price of the property was $13,017, of which amount $3,254.50 was paid at the time of delivery and the balance was to be paid in three equal payments in three, seven, and eleven months, with interest at 8 per cent. The contract was filed in the auditor's office within 10 days from its date, and the lumber company took possession of the property. No further payments were paid except $28.62 on June 21, 1909, which was credited on the interest then due upon the deferred payments. On July 28, 1909, the lumber company upon petition of J. W. Stout was declared insolvent, and respondent appointed its receiver. He duly qualified as such, and took possession of all the property of the lumber company, including the machinery covered by the conditional bill of sale. Thereafter the appellant filed a claim in the receivership case, in which it set forth the terms of the sale of the machinery to the lumber company, and the default in the payments as provided for in the contract asserted its right to the possession of the machinery under the terms of the contract, and asked that it be permitted to remove it, or that it be secured in the payment of the amount then due. The receiver made a motion to strike this claim upon the ground (1) that the iron works had not obtained leave of court to maintain action against the receiver; (2) that the court had full jurisdiction to ascertain and determine priorities of creditors, and to afford ample protection; (3) that no intervention had been sought; and (4) that the iron works had filed its proof of claim with the receiver and submitted itself to the jurisdiction of the court, and was estopped from claiming a forfeiture of the contract, or retaking the property. This motion was granted, and appellant's claim dismissed, and it brings this appeal.

Respondent moves to dismiss the appeal upon the ground that the order granting his motion and dismissing appellant's claim is not an appealable order. In support of this contention respondent argues that the court below treated his motion as a demurrer, and that an order sustaining a demurrer is not appealable. It is true we have so held, and such is still the rule. A plaintiff to whose complaint a demurrer has been sustained may plead over, or he may elect to stand on his plea, and appeal from the subsequent order of dismissal should such an order be entered. This is, in effect, the situation here. Appellant could not amend its claim. It had stated the whole situation upon which it based its claim to retake the machinery, and when the court held as a matter of law that it had no right to retake the machinery, but must submit its claim as an ordinary creditor for the amount claimed to be due, and take its chances upon a distribution, it was in effect a final order, depriving it of the right to recover the possession of the machinery, and in effect determining the proceedings, so far as appellant sought to enforce its rights under the conditional bill of sale. It could hardly be said that...