Timm v. Timm

• Decision Date: 08 March 1904
• Citation: 75 P. 879,34 Wash. 228
• Court: Washington Supreme Court
• Parties: TIMM v. TIMM.

75 P. 879

34 Wash. 228

TIMM v. TIMM.

Supreme Court of Washington

March 8, 1904

Appeal from Superior Court, Adams County; Geo. W. Belt, Judge.

Action by Ludwig Timm against Susan Timm. From a judgment for defendant for divorce, but providing that plaintiff hold as his separate property all the property owned by plaintiff and defendant as community property, defendant appeals. Reversed.

O. R. Holcomb, for appellant.

Merritt & Merritt, for respondent.

PER CURIAM.

Plaintiff Ludwig Timm, instituted an action for divorce in the superior court of Adams county against defendant, Susan Timm, his wife, on the grounds of desertion and abandonment. Defendant answered by denying the material averments in the complaint and setting up an affirmative defense alleging cruel and inhuman treatment on the part of plaintiff towards herself. The plaintiff filed a reply denying the material allegations of the affirmative defense. On the 10th day of September, 1900, the cause came on for trial in the lower court. Judgment was given for plaintiff dissolving the bonds of matrimony theretofore existing between the parties to this controversy. On the 7th day of March, 1901, the trial court made an order vacating this judgment for divorce, and ordered, further, that plaintiff, Ludwig Timm, pay to the clerk of the court for the benefit of Susan Timm, defendant on or before March 21, 1901, $37 for suit money, and $75 to O. R. Holcomb, Esq., her then attorney, as counsel fees. On the 10th day of April, 1901, the plaintiff having failed to comply with the order of the court regarding the payments to these sums of money. the superior court ordered that the plaintiff show cause on or before May 27, 1901, why he should not be punished for contempt. On October 5, 1901, defendant by her attorney, Mr. Holcomb, deposited in the registry of the court three money orders, payable to order of Susan Timm aggregating $220.85, accompanied with notice to plaintiff and his attorneys that defendant refused to accept same in accordance with any settlement made by plaintiff and defendant's former attorney, W. W. Zent, and that said attorney Holcomb claimed a lien for his fees on such deposit. On the 17th day of October, 1901, the plaintiff's attorneys served upon Mr. Holcomb a notice in writing disclaiming any interest in such postal money orders, and further stating in such notice that 'said plaintiff hereby further notifies defendant and her attorney that no objection is or will be made to any other the court may see fit to make with regard to said moneys by reason of the fact, hereinbefore stated, that said plaintiff has and claims no right or interest in the to said moneys.' On October 28, 1901, the lower court ordered 'that the clerk of said court deliver to defendant's attorney, O. R. Holcomb, the said three postal money orders, aggregating the sum of $220.85; that, upon the same being cashed, the said defendant's attorney retain the sum of $75 heretofore ordered to be paid as attorney's fee, and the further sum of $37 suit money, for the benefit of the defendant, and that the remainder of said sum, to wit, $108.35, be deposited with the clerk of the court, and retained by him pending the final determination of said suit.'

The cause came on for trial on November 18, 1901. The lower court found, among other things, that the allegations of cruelty and inhuman conduct contained in defendant's affirmative defense were true. '(5) That on the ___ day of January, 1901, and during the pendency of this action, plaintiff and defendant made a full and final settlement of all of their property rights, both community and personal, and plaintiff executed his promissory note for the sum of two hundred fifty dollars ($250), that being the sum agreed upon in said settlement to be paid to defendant by plaintiff as her share and interest in and to the property of plaintiff and defendant, and that at the time said note became due plaintiff paid, settled, and satisfied said note, with the interest thereon in full, and defendant received, accepted, and retained said money so paid upon said note.' Conclusions of law were stated upon such findings as follows: '(1) That defendant is entitled to a decree of divorce severing the bonds of matrimony existing between plaintiff and defendant; (2) that plaintiff is entitled to all of the property, both real and personal, of every kind and description, belonging to plaintiff and defendant, either as community or separate property; (3) that defendant is entitled to recover her costs and disbursements in this action.'

Defendant excepted to said fifth finding of fact and the second conclusion of law. Judgment was entered in the action on the findings in accordance with these conclusions of law, that part of the judgment relating to the property rights of the parties being as follows: 'That plaintiff have and hold in his own right and as his separate property, against any and every claim of defendant, all of the property of every kind and description, both real and personal, owned by plaintiff and defendant as community property, or by plaintiff as his separate property, to have and to hold the same forever as against any claim of defendant.' From this portion of the judgment this appeal is taken. The appellant assigns that the trial court erred in making finding of fact No. 5 and conclusion of law No. 2, above noted, and in rendering that part of the judgment from which an appeal has been taken in this cause.

The respondent moves to dismiss the appeal herein because appellant failed to print in her opening brief the findings of fact upon which errors are assigned in this court. The appellant thereafter caused to be printed in her reply brief all the findings, the conclusions of law, and final judgment. She therefore comes within the purview of the decision heretofore enunciated by this court in Young v. Borzone, 26 Wash. 4, 66 P. 135, 421. The motion to dismiss the appeal is therefore denied.

The testimony in this record shows that the parties to this controversy intermarried in 1869, in the state of Minnesota that they have raised a family of four children, all of whom are grown. The testimony in appellant's behalf amply sustains her allegations of cruelty on the part of respondent. It appears that she was a hard-working woman, and was about 54 years old at the time of the trial; that she helped respondent, during the period of their marriage, accumulate real and personal property, prior to the bringing of this action, of the value of more than $3,000. Respondent contends that the payment of the $250 designated in the findings was paid in pursuance of an agreement entered into between him and Mr. W. W. Zent, appellant's first attorney in the case at bar. In support of such contention the following written instrument was offered and received in evidence at the trial: 'Ritzville, Washington, Jan. 21, 1901. Received of Ludwig Timm a note due October 15, 1901, for $250.00, same being in full settlement of all claims of Susan Timm, his former wife, against said L. Timm, this receipt to take effect if said Ludwig Timm shall deliver to W. W. Zent two notes one for $150.00, signed by Mr. Ulm and William Snyder, and one for $80.00, signed by L. H. Jones, as collateral security, and if said notes are not delivered this receipt shall not take effect until said note by said Timm is fully paid. W. W. Zent, Atty. for Mrs. Susan Timm.' Mr. Zent subsequently collected...