Walker v. Sieg

• Decision Date: 23 August 1945
• Docket Number: 29646.
• Citation: 23 Wn.2d 552,161 P.2d 542
• Parties: WALKER v. SIEG et ux.
• Court: Washington Supreme Court

161 P.2d 542

23 Wn.2d 552

WALKER v. SIEG et ux.

No. 29646.

Supreme Court of Washington

August 23, 1945

Department 1.

Action by Cynthia Walker, an incompetent, by her guardian, Roy E Carey, against Russell Sieg and wife for the balance due on a note. From a judgment of dismissal, plaintiff appeals.

Appeal from Superior Court, Grant County; E. W. schwellenbach judge.

W. E Southard, of Ephrata, for appellant.

T. B. Southard and W. M. Clapp, both of Ephrata, for respondents.

JEFFERS, Justice.

This action was originally commenced by Roy E. Carey, as attorney in fact for Cynthia Walker, against Russell Sieg and Chloie Sieg, his wife, sometime in February, 1943. The purpose of the action was to recover the balance claimed to be due Cynthia Walker from the Siegs upon a promissory note made and executed by Mr. and Mrs. Sieg in favor of W. M. Walker husband of Cynthia Walder. The note, dated December 1, 1924, is for $4,500. It became due, according to its terms, three years after date, and bears interest at the rate of eight per cent per annum from date until paid. On the back of the note are the following endorsements:

'Feb. 13, 1926. Recd. payment of $1,016.55 on this note.

'June 8, 1926. Recd. Payment of $52,60 on this note.

'Credit. Oct. 1928, $19.35.

'Credit. Dec. 1929, $100,00.

'Credit. Dec. 1930, $50.00.

'Nov. 1932, credit, $100.00.

'Sept. 1933, credit, $50.00.

'Oct. 1934, recd. for credit, $50.00.

'December 1935, credit, $50.00.

'September 1936, credit, $50.00.

'Nov. 1937, recd. on note, $50.00.'

It is alleged in the complaint that since the execution and delivery of the note, W. M. Walker died, and that Cynthia Walker is now the sole owner of the note; that no payments have been made on the note, except those shown by the above endorsements; and that there is now due and owing from defendants the sum of $11,753. Attached to the complaint as exhibit A is a general power of attorney, signed by Cynthia Walker on May 13, 1941, sworn to Before a notary public on May 14, 1941, and filed May 19, 1941.

August 2, 1943, plaintiff filed a motion for default against defendants for failure to answer the complaint. The affidavit in support of the motion states that on April 27, 1943, defendants' demurrer to the complaint and their motion directed against the complaint came on for hearing, and the court overruled the demurrer and struck all of paragraph 2 of the complaint after the allegation that defendants were husband and wife; that more than two months have elapsed and defendants have not answered the complaint.

The order or orders of the trial court overruling the demurrer and granting defendants' motion are not Before us, so we do not know what they contained or when they were filed, other than as above indicated.

On August 10, 1943, defendants filed an answer, in which they admitted that they were husband and wife; admitted the execution and delivery of the note; admitted that Cynthia Walker was the wife of W. M. Walker; admitted the payments endorsed on the note, including the payment made in November, 1932; denied that any other or further payments were ever made on the note by defendants; and denied that there is any amount now due and owing on the note from defendants to plaintiff.

The answer also contains two affirmative defenses with which, in view of the questions raised on this appeal, we are not concerned, except that in the first affirmative defense it is alleged that at the time this action was commenced there was another action pending in the superior court for Grant county, wherein it was sought to have a guardian appointed for Cynthia Walker, which action was still pending and undisposed of.

September 10, 1943, plaintiff filed a reply, in which it is stated that the proceeding to have a guardian appointed for Cynthia Walker has not been disposed of because of the inaction of those who asked that such a guardian be appointed. The reply denies the other affirmative matter set up in the answer.

November 26, 1943, plaintiff filed a motion asking that Roy E. Carey, as guardian of the estate of Cynthia Walker, be substituted as party plaintiff for Cynithia Walker, by her attorney in fact, Roy E. Carey. It is stated in the motion that since this action was commenced, Roy E. Carey has been duly appointed guardian of the estate of Cynthia Walker.

December 18, 1943, the court made an order authorizing the above substitution, which order was filed December 20, 1943. The record Before us does not show when the court made and entered the order appointing Roy Carey guardian of Mrs. Walker. We assume it was probably not until after defendants had filed their answer on August 10, 1943, calling attention to the fact that such a proceeding was pending.

February 5, 1944, defendants filed an amended answer, and it is in regard to an affirmative defense set up in this amended answer that we are concerned in the first assignment of error, to which we shall later refer. By this amended answer, defendants admit that they are husband and wife; admit the execution and delivery of the note; admit that Cynthia Walker is the sole owner of the note; admit the payments endorsed on the note down to and including the payment in November, 1932; deny that any other payments were made on the note by defendants; and deny that there is anything now due and owing on such note from defendants to plaintiff.

This answer contains three affirmative defenses. We are concerned herein with only the second, in which it is alleged that no payments upon the note were made to Cynthia Walker, or anyone in her behalf, after the year 1932, and by reason of the failure to make such payments the action is barred by the statute of limitations.

On the same day the amended answer was filed, plaintiff filed a motion to strike the amended answer, for the reasons that the answer was filed without leave of court and for the purpose of delaying the action, and that if the amended answer was permitted to stand it would work great injury to plaintiff, because since the commencement of the action Cynthia Walker had become adjudged mentally incompetent and thereby barred from testifying in the action.

May 25, 1944, an order was filed, which recites in part that the motion to strike the affirmative defenses in the amended answer came on for hearing on February 8th; that the third affirmative defense be stricken; that the second affirmative defense setting up the statute of limitations be allowed to stand, as well as the first affirmative defense.

The cause came on for hearing Before the court on July 14, 1944.

October 23, 1944, the trial court filed a memorandum opinion, which concludes as follows:

'When reliance is placed upon a part payment to remove the bar of the statute and payment is denied, the burden of proving the payment within the statutory time rests upon the party asserting it. It is the fact of partial payment, and not the formal entry of credit, which tolls the statute.

'It is my opinion that the plaintiff has failed to sustain the burden of proof necessary to establish any payments made by Mr. Sieg on this note subsequent to 1935, and that therefore judgment should be for the drdendants.' (Italics ours)

On March 8, 1945, the court made and entered findings of fact, from which it concluded that Cynthia Walker was the owner and holder of the note; that no payments had been made thereon since December, 1935, and that by reason thereof any action on the note was barred by the statute of limitations; and that the action should be dismissed. Judgment was entered accordingly.

Plaintiff has appealed from the judgment entered, and was authorized by the trial court to expend funds of the ward necessary to perfect such appeal to this court.

The assignments of error are: (1) In permitting the respondents to amend their answer in which the statute of limitations was pleaded affirmatively; (2) in permitting the respondents to testify to transactions had with appellant, an incompetent person; (3) in holding that the evidence introduced by appellant was insufficient to establish all payments endorsed on the note; (4) in holding that the testimony of the guardian opened the door to permit the respondents to testify as to transactions had with Mrs. Walker; and (5) in entering judgment of dismissal.

Before discussing the assignments of error and the particular facts pertaining thereto, we shall make a brief general statement in regard to the parties to this action.

Roy Carey has lived in Hartline and that vicinity for twenty-five or thirty years, and is a son-in-law of Cynthia Walker. While Mrs. Walker has a home of her own in Hartline, she has lived with Mr. and Mrs. Carey for the past five years. Mr. Carey drew the note involved in this action, and made all the endorsements appearing thereon, at the request of Cynthia Walker. Mrs. Walker was past eighty years of age at the time of this hearing. In addition to her home in Hartline, she owned considerable farm property near Hartline.

Respondent Russell Sieg is also a son-in-law of Mrs. Walker, and has occupied and farmed some of Mrs. Walker's land since 1918. In addition to Mrs. Sieg and Mrs. Carey, Mrs. Walker has two other daughters, Mrs. Gertrude Boland, of Yakima, and Mrs. Ivy Pincen, who lives on a ranch near Hartline. So far as the record shows, the most friendly feeling exists, at least between Mrs. Sieg, Mrs. Boland and Mrs. Pincen. We may say further that we do not believe any witness attempted to testify to facts other than as they believed them to be.

With the above general statement, we shall now discuss the first assignment of error, namely, that the court erred in permitting respondents to plead the statute of limitations in their...