Welling v. Mount Si Bowl, Inc., 41927

• Decision Date: 29 July 1971
• Docket Number: No. 41927,41927
• Citation: 79 Wn.2d 485,487 P.2d 620
• Court: Washington Supreme Court
• Parties: Laura M. WELLING, a widow, Respondent, v. MOUNT SI BOWL, INC., et al., Defendants, Paul Hoff et al., Appellants.

Page 485

79 Wn.2d 485

487 P.2d 620

Laura M. WELLING, a widow, Respondent, v. MOUNT SI BOWL, INC., et al., Defendants Paul Hoff et al., Appellants.

No. 41927.

Supreme Court of Washington, Department 1.

July 29, 1971.

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 ...