Welling v. Mount Si Bowl, Inc., 41927

Decision Date29 July 1971
Docket NumberNo. 41927,41927
Citation79 Wn.2d 485,487 P.2d 620
CourtWashington Supreme Court
PartiesLaura M. WELLING, a widow, Respondent, v. MOUNT SI BOWL, INC., et al., Defendants, Paul Hoff et al., Appellants.

Cushman, Thomas & Holt, N. R. Thomas, Issaquah, for appellants.

R. Wayne Cyphers, Seattle, for respondent.

FINLEY, Associate Justice.

In 1959, the Wellings, as sellers, entered into a real estate contract with Mount Si Bowl, Inc., as purchaser. Through intervening assignments of Mount Si's interests in the contract, L & L Enterprises, Inc., became assignee-purchaser under the real estate contract in 1961. In 1963, Hoff obtained a judgment against L & L Enterprises, Inc. Hoff apparently made no attempt to execute upon the judgment against L & L Enterprises, Inc., until November 22, 1968, upon which date he obtained a writ of execution commanding the Sheriff of King County to levy upon the personal and real property of L & L Enterprises, Inc.

The writ of execution was not delivered to the Sheriff until January 22, 1969, and was not served by the Sheriff until January 28, 1969, some sixty-one and sixty-seven days respectively after its issuance. On March 7, 1969, the right, title and interest of L & L Enterprises, Inc., in the above-mentioned real estate was sold at public auction to Hoff. The Sheriff filed his Return on Sale of Real Property on March 11, 1969, and an order confirming the sale was apparently entered on July 14, 1969.

Chronologically interspersed with the above-described events were additional occurrences involving the Wellings, sellers under the real estate contract. These latter events form the basis for the instant action. Stanley Welling expired, and his interest in the questioned property passed to his widow, Laura Welling, plaintiff-respondent in the instant action. In 1966, Laura Welling sent (1) notice of intention to declare forfeiture and cancellation of the real estate contract, and (2) notice of declaration of forfeiture and cancellation of said contract. These notices were sent to Mount Si Bowl, Inc., (the original purchaser under the real estate contract), to Lansing (assignee of Mount Si Bowl, Inc.,) and to L & L Enterprises, Inc., (assignee of Lansing).

In October, 1968, Mrs. Welling commenced the instant action to quiet title to the real estate described by the contract. Named defendants to the action included all of the above-indicated parties to whom the notices of forfeiture had been sent and, additionally, all other persons or parties unknown claiming any right, title, estate, lien or interest in the disputed property. Thereafter, Kohlruss and Hoff, claiming an interest in the disputed land, were allowed to join the action to quiet title as additional defendants.

Kohlruss and Hoff prayed for dismissal of the quiet title action, for the right to levy and execute upon the judgment debtor's (L & L Enterprises, Inc.,) interest in the contract, and the right to pay on the real estate contract.

Respondent Welling then moved for summary judgment against the additional defendants Kohlruss and Hoff, who resisted the motion on the ground that they had been given no notice of the intended declaration and later forfeiture of the real estate contract, and that they were entitled to receive such notice. The trial court granted summary judgment in favor of respondent Welling, dismissing additional defendants Kohlruss and Hoff from the action.

This ruling was appealed, presumably by Both additional defendants, although we are constrained to observe that the instant record does not clearly indicate whether one or both defendants have prosecuted this appeal, nor does it contain any indication whatsoever of the relationship, if any, between Kohlruss and Hoff.

Nevertheless, the record is sufficient to support the trial court's ruling. Appellant Kohlruss's contention that he received no notice of respondent Welling's intended declaration and later forfeiture of the real estate contract is spurious and totally devoid of merit. The record clearly discloses that Kohlruss Signed for and received both notices on behalf of defendant Mount Si Bowl, Inc.

Appellant Hoff's claim that he was entitled to receive such notices is based upon his contention that respondent Welling had Actual notice of Hoff's 1963 judgment against the real estate contract assignee-purchaser L & L Enterprises, Inc. 1 The sole support of this contention is an affidavit submitted By Hoff's attorney stating, in effect, that Hoff informed his attorney that he (Hoff) had told respondent Welling of his (Hoff's) judgment against L & L Enterprises. Respondent Welling, by rebuttal affidavit, denied actual notice of the Hoff judgment.

These contrary assertions would present a genuine issue of material fact requiring denial of respondent Welling's motion for summary judgment, but for the inadequacy of the affidavit submitted on behalf of appellant Hoff by his attorney. Civil Rule 56(e) provides, in part:

Supporting and opposing affidavits shall be made on personal knowledge, Shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the Affiant is competent to testify to the matters stated therein. * * *

(Italics ours.)

The allegations contained within the affidavit of appellant Hoff's attorney clearly constitute hearsay. As such, they are not facts which 'would be admissible in evidence.' Furthermore, the substance of the affidavit of Hoff's attorney is not within the testimonial knowledge of the affiant, consistent with Civil ...

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11 cases
  • Yu v. Paperchase Partnership
    • United States
    • New Mexico Supreme Court
    • November 18, 1992
    ...knowledge." Id. 650 P.2d at 1128 (citing Kendrick v. Davis, 75 Wash.2d 456, 452 P.2d 222 (1969) (en banc), and Welling v. Mount Si Bowl, Inc., 79 Wash.2d 485, 487 P.2d 620 (1971)). Other cases, which we deem sufficiently analogous to be persuasive in this context, are those in which a vendo......
  • Hall v. John L. Scott Real Estate
    • United States
    • Washington Court of Appeals
    • January 17, 2023
    ... ... through John L. Scott Inc., [ 1 ] were his real estate brokers for ... the ... in evidence. See Welling v. Mount Si Bowl, Inc. , 79 ... Wn.2d 485, 489, 487 ... ...
  • Sofie v. Kane, 9460-2-I
    • United States
    • Washington Court of Appeals
    • September 7, 1982
    ...vendees of whom they had actual knowledge. See Kendrick v. Davis, 75 Wash.2d 456, 452 P.2d 222 (1969); Welling v. Mount Si. Bowl, Inc., 79 Wash.2d 485, 487 P.2d 620 (1971). Just as a vendee is a necessary and proper party for purposes of a condemnation proceeding, Pierce County v. King, 47 ......
  • Morris v. McNicol
    • United States
    • Washington Supreme Court
    • February 28, 1974
    ...must be resolved against him. Barber v. Bankers Life & Casualty Co., 81 Wash.2d 140, 500 P.2d 88 (1972); Welling v. Mount Si Bowl, Inc., 79 Wash.2d 485, 487 P.2d 620 (1971). Thus, where a motion for summary judgment is made, it is the duty of the trial court to consider all evidence and all......
  • Request a trial to view additional results
2 books & journal articles
  • §22.3 - The Vendor-Vendee Relationship
    • United States
    • Washington State Bar Association Washington Real Property Deskbook Series Vols. 1 & 2: Washington Real Estate Essentials (WSBA) Chapter 22 Real Estate Contracts
    • Invalid date
    ...been properly forfeited prior to actual execution, there is simply nothing left for the creditor to reach. Welling v. Mount Si Bowl, Inc., 79 Wn.2d 485, 487 P.2d 620 (1971). For an analysis of the legal position of the creditor who "cures" the buyer's default, see Linda S. Hume, The Washing......
  • Table of Cases
    • United States
    • Washington State Bar Association Washington Real Property Deskbook Series Vols. 1 & 2: Washington Real Estate Essentials (WSBA) Table of Cases
    • Invalid date
    ...P. 323 (1919): 20.14(1), 25.7(1) Welch v. Hover-Schiffner Co., 75 Wash. 130, 134 P. 526 (1913): 22.3(1)(a) Welling v. Mount Si Bowl, Inc., 79 Wn.2d 485, 487 P.2d 620 (1971): 22.3(4)(b)(i) Wenatchee Prod. Credit Ass'n v. Pac. Fruit & Produce Co., 199 Wash. 651, 92 P.2d 883 (1939): 20.14(8)(a......

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