Trowbridge v. Spinning

• Decision Date: 25 August 1900
• Citation: 23 Wash. 48,62 P. 125
• Parties: TROWBRIDGE v. SPINNING et al.
• Court: Washington Supreme Court

62 P. 125

23 Wash. 48

TROWBRIDGE v. SPINNING et al.

Supreme Court of Washington

August 25, 1900

Appeal from superior court, King county; E. D. Benson, Judge.

Action by Lillie M. Trowbridge against Fred M. Spinning, defendant and the National Bank of Commerce of Seattle, Wash Washington National Bank of Seattle, Wash., First National Bank of Seattle, Wash., and the Seattle Safe-Deposit Vaults Incorporated, a corporation, of Seattle, Wash., garnishees to recover alimony in a divorce action brought in the circuit court of the city of St. Louis, Mo. There was a judgment for defendants, and plaintiff appeals. Reversed.

E. F. Blaine, Wilmon Tucker, and Ivan L. Hyland, for appellant.

John G. Gray and John N. Perkins, for respondent Spinning.

George E. De Steiguer, for respondent National Bank of Commerce.

WHITE, J.

The amended complaint in this action, omitting the formal parts is as follows:

'That at all the times herein mentioned the circuit court of the city of St. Louis, in the state of Missouri, was, and ever since has been, and now is, a court of general jurisdiction over matters in equity and law, duly organized and existing under and by virtue of the laws of said state. That on the 25th day of June, 1895, the defendant above named, Fred M. Spinning, commenced an action in said circuit court of the city of St. Louis, as plaintiff, against Lillie M. Spinning, she being the plaintiff here, who at that time was the wife of said Fred M. Spinning, and defendant, by filing his petition therein, which said action was entitled as follows, to wit: 'In the Circuit Court of the City of St. Louis, October, 1895, Fred M. Spinning, Plaintiff, v. Lillie M. Spinning, Defendant.' That upon the filing of said petition the clerk of said court, on the 25th day of June, 1895, duly issued a summons commanding the defendant therein, who is the plaintiff herein, to appear before the judges of said circuit court on the first day of the next term thereof to be held in the city of St. Louis, at the court house in said city, on the first Monday of October next following the day of the issuance thereof, then and there to answer the complaint of Fred M. Spinning as set forth, a copy of which was attached to said summons, and said summons was duly sealed with the seal of said court and attested by the clerk on said day, and thereafter was duly served upon the defendant herein named, personally, at the city of St. Louis, in the state aforesaid, by the sheriff of said county, by delivering a copy thereof, with a copy of said petition, to said defendant personally, she being the plaintiff herein.

'That, after the service of process upon said defendant, the plaintiff herein, said Lillie M. Trowbridge, appeared by her attorney, Wm. McNamee, and in person, and thereafter such proceedings were had and done therein that said Lillie M. Trowbridge, then Lillie M. Spinning, filed her answer and cross complaint in said action against the said Fred M. Spinning, wherein she alleges that she was the injured person, praying, among other things, that she was entitled to a decree of divorce, and for her costs and alimony. That thereafter, and on the 29th day of January, 1896, such other and further proceedings were had in said action that a trial thereof was had on said day, wherein and whereby said court ordered, decreed, and rendered judgment therein against the said Fred M. Spinning, granting the defendant therein a complete decree of divorce, she being the plaintiff here, together with judgment against said Fred M. Spinning for the sum of $5,000 as and for alimony in gross, and further ordered, adjudged, and decreed that said Fred M. Spinning pay the costs of said proceeding, and that execution issue therefor. And that said decree was duly made, entered, enrolled, and docketed in said court dissolving the bonds of matrimony and rendering judgment as aforesaid, and that no part of said judgment and decree has ever been paid.

'That under and by virtue of the provisions of the Revised Statutes of the State of Missouri, c. 28, p. 360, of volume 1, for the year 1879, such judgment and decree rendered as aforesaid has the force and effect of a judgment at law for the payment of money. That such is the construction thereof, and the force and effect to be given to the same, as determined by the supreme court of said state of Missouri, and such is the law of said state. That by reason thereof plaintiff is advised and believes, and therefore alleges the fact to be, and that under and by virtue of the constitution of the United States (section 1, art. 4), she has a good right to bring her cause of action as aforesaid in the courts of the state of Washington, and to have and recover of the said defendant the sum of $5,000, awarded to her as aforesaid, and that the courts of the state of Washington will give the same force and effect to said decree as is given thereto in the state of Missouri.

'Plaintiff hereby refers to sections 2179, 2180, 2184, and 2185 of volume 1 of the Revised Statutes of the State of Missouri of 1879, and attaches hereto full and complete copies of said sections aforesaid; the same being marked as Exhibit A, and made a part and parcel thereof to all intents and purposes as fully as though copied at length herein.'

The sections of the Revised Statutes of the State of Missouri referred to in section 4 of the complaint are as follows:

'Sec. 2179. When a divorce shall be adjudged the court shall make such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children or any of them as from the circumstances of the parties and the nature of the case shall be reasonable, and when the wife is plaintiff, may order the defendant to give security for such alimony and maintenance; and upon his neglect to give the security required of him, or upon default of himself and his securities, if any there be, to pay or provide such alimony and maintenance, may award an execution for the collection thereof or enforce the performance of the judgment or order by sequestration of property or by such other lawful ways and means as is according to the practice of the court. The court on the application of either party may make such alteration from time to time as to the allowance of alimony and maintenance as may be proper, and the court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the manner provided by law in other cases.

'Sec. 2180. Upon a decree of divorce in favor of the wife the court may in its discretion decree alimony in gross or from year to year. When alimony is decreed in gross such decree shall be a general lien on the realty of the party against whom the decree may be rendered as in the case of other judgments. When a decree is for alimony from year to year such decree shall not be a lien on the realty as aforesaid but an execution in the hands of the proper officer issued for the purpose of enforcing such decree, shall constitute a lien on the real and personal property of the defendant in such execution so long as the same shall lawfully remain in the possession of said officer unsatisfied.'

'Sec. 2184. No final judgment or order rendered in cases arising under this chapter shall be reversed, annulled or modified in the supreme or any other court by appeal or writ of error unless such appeal shall have been granted during the term of court at which the judgment or order appealed from was rendered or unless such writ of error shall have been issued within 60 days after the order was made or judgment was rendered.

'Sec. 2185. No petition for review of any judgment for divorce in any case arising under this chapter shall be allowed any law or statute to the contrary notwithstanding; but there may be a review of any order or judgment touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as in other cases.'

The prayer of the complaint was for judgment against the defendant Fred M. Spinning for the sum of $5,000, with interest thereon from the 26th day of January, 1896, at the rate of 6 per cent. per annum, and for costs, etc. The respondent Spinning demurred to this complaint on the ground that the same did not state facts sufficient to constitute a cause of action against him. This demurrer, upon hearing, was sustained, and judgment was entered dismissing the action. On September 6, 1899, at the time the plaintiff filed her original complaint in the superior court of King county state of Washington, a writ of garnishment was issued and served upon the Washington National Bank, First National Bank, National Bank of Commerce, Seattle Safe-Deposit Vaults, Incorporated,--all of the city of Seattle,--as garnishee defendants. All of the garnishee defendants appeared, and the Seattle Safe-Deposit Vaults, Incorporated, and the Washington National Bank denied generally, and these answers were controverted. The First National Bank admitted that it had on deposit the sum of $266.19 to the credit of the respondent. The garnishee defendant the National Bank of Commerce answered, stating: That the respondent had in its vaults a safe-deposit box, to which there was a private and a master's key, the private key being in the possession of the respondent, and the master's key in the possession of the garnishee defendant, and to open said box it is necessary--First, for the master's key to be used; second, for the private key to be used. That the contents of the box were unknown to the garnishee defendant. To the vault there was a vault door, locked by a time combination, which was under the exclusive charge of the garnishee...