West Coast Mfg. & Inv. Co. v. West Coast Imp. Co.

• Decision Date: 27 August 1901
• Citation: 66 P. 97,25 Wash. 627
• Court: Washington Supreme Court
• Parties: WEST COAST MFG. & INV. CO. v. WEST COAST IMP. CO.

66 P. 97

25 Wash. 627

WEST COAST MFG. & INV. CO. v. WEST COAST IMP. CO.

Supreme Court of Washington

August 27, 1901

Appeal from superior court, King county; William Hickman Moore Judge.

Action by the West Coast Manufacturing & Investment Company against the West Coast Improvement Company for damages for breach of warranty contained in a deed. From a judgment in favor of the defendant, the plaintiff appeals. Reversed.

James Kiefer, for appellant.

Piles Donworth & Howe, for respondent.

WHITE J.

Respondent moves to dismiss this appeal for the reason that no appeal bond has been executed or filed as required by the statute. The judgment appealed from was entered pursuant to an order sustaining the respondent's demurrer to appellant's complaint, appellant having elected to stand on its complaint, and the action having been accordingly dismissed on the merits. The judgment is that the plaintiff take nothing by the action, and that the defendant recover of the plaintiff its costs and disbursements to be taxed. From the recitals in the judgment it may be conceded that it is a final judgment on the merits. The record shows that the amount of the costs and disbursements taxed is $10. The judgment of dismissal, and the amount of costs taxed, are set forth in the recitals of the bond. The penalty of the bond is in the sum of $250. The condition of the bond is to the effect that the appellant will pay all costs and damages that may be awarded against it on the appeal or on the dismissal thereof, not exceeding $200, and will pay and satisfy and perform the judgment appealed from in case it shall be affirmed, and any judgment or order which the supreme court may render or make, or order to be rendered or made by the superior court from which the appeal is taken. The respondent contends that, inasmuch as the bond is both an appeal and supersedeas bond, the penalty, under section 6506 Ballinger's Ann. Codes & St., should be in the sum of at least $400. Under section 6506, supra, the penalty of an appeal bond shall not be less than $200, and, in order to effect a stay of proceedings, where the appeal is from a final judgment for the recovery of money, it shall be in a penalty double the amount of the damages and costs recovered in such judgment; in other cases it shall not be less than $200, and sufficient to save the respondent harmless from damages by reason of the appeal, as the judge of the superior court shall prescribe. While the judgment appealed from was a judgment for costs, it was as much a judgment for money as if it had been for a principal sum and costs. The statute is clear, and there is no room for construction. It means just what it says, viz. that all final judgments for money may be superseded on appeal by a bond for double the amount of such judgment. Here there is a judgment for $10, and a bond in the penal sum of $250. A bond for $220 would have been sufficient, and a literal compliance with the statute. The fact that it is more than the exact sum cannot militate against the appellant. The purpose of a supersedeas bond is to protect the respondent in the collection of his judgment and in the enforcement of the relief awarded him by the judgment. All the respondent could obtain by this judgment was the sum of $10. Upon the payment of this amount, the respondent was bound to fully satisfy and discharge the judgment upon the records of the court. The bond in this case is more than double the amount of the money judgment appealed, and $200 additional, as required by law. Under the conditions of the bond, the respondent was fully secured in the amount recovered by it in the judgment, as well as for costs and damages up to $200 on appeal. The motion to dismiss the appeal is therefore denied.

The complaint in this action, omitting formal allegations, is substantially as follows: 'Second. That on or about the 22d day of October, 1889, the plaintiff purchased from the defendant a certain tract of land, situated in Ballard, King county, Washington, and paid part of the purchase money expressed in the deed hereinafter mentioned, and thereafter on the 13th day of August, 1890, upon payment by the plaintiff of the balance of the cash consideration for said purchase, the defendant, by its officers thereunto duly authorized, made, executed, and delivered to the plaintiff its certain deed to said premises, in the words and figures following, to wit: This indenture, made the 13th day of August, 1890, between the West Coast Improvement Company, a corporation duly incorporated, organized, and existing under and by virtue of the laws of the state of Washington, the party of the first part, and the West Coast Manufacturing & Investment Company, of Ballard, Wash., also a corporation, the party of the second part, witnesseth: That the said party of the first part, for and in consideration of seven hundred and fifty dollars, to it paid by the said party of the second part, does hereby grant, bargain, sell, and convey to said party of the second part, and to its successors and assigns, forever, the following described tracts or parcels of real estate, lying and being in the county of King, state of Washington, and particularly bounded and described as follows, to wit: Beginning at the corner of sections 11, 12, 13, and 14, township 25 north, range 3 east; thence north on the line between sections 11 and 12, 62.7 feet to the southerly margin of Shilshole avenue; thence north, 66 deg. 18' west, along said marginal line, 252 feet, to the easternmost corner of the tract described as follows: From its easternmost corner run thence S., 23 deg. 42' west, 330 feet; thence N., 66 deg. 18' west, 250 feet; thence N., 23 deg. 42' E., 330 feet, to the southerly line of Shilshole avenue; thence S., 66 deg. 18' E., along said marginal line, 250 feet, to the place of beginning,--together with all the littoral, riparian, and shore rights thereunto belonging or in any wise appertaining,'--together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, and also all the estate, right, title, and interest at law and in equity therein or thereto, to have and to hold the said premises to the said party of the second part, and to his successors and assigns, forever. And the said party of the first part does covenant with the said party of the second part and its legal representatives, forever, that the said premises are free from all incumbrances; and the said party of the first part will, and its successors and assigns shall, warrant and defend the same to the said party of the second part, its successors and assigns, forever, against the lawful claims and demands of all persons whatsoever. * * * Third. That at the time of making said contract, to wit, in October, 1889, the defendant had recently platted and laid out a town site in the vicinity of and adjacent to the lands hereinbefore described, and had just placed the same upon the market, and had platted said town site to deep water, and claimed to own and held itself out as the owner of all the lands to deep water; and the actual consideration for said conveyance, in addition to the payment of seven hundred and fifty dollars in cash, was that the plaintiff should erect and put in operation in a short time a shingle mill and shingle manufacturing plant upon said premises for the purpose of aiding and promoting the sale of the lands of the defendant so platted and laid out into a town site. Fourth. That upon the making of said contract of sale and the payment of the first of said purchase money defendant put the plaintiff into possession of said premises, and plaintiff erected thereon valuable improvements, to wit, a shingle mill and shingle manufacturing plant, and put the same into operation, and expended in that behalf a sum exceeding ten thousand dollars, and established thereon a large and profitable business. Fifth. That afterwards, to wit, on or about the 10th day of December, 1894, the state of Washington, by its board of state land commissioners, thereunto duly authorized by the laws of said state, laid claim to the title to the westerly part of said tract of land described in said deed, to wit, to seventy-seven thousand five hundred seventy-one and five-tenths (77,571.5) square feet of the premises conveyed by the said deed, and maintained and asserted the title of the state of Washington to the same as tide lands belonging to said state, and platted the same for sale as tide lands, and thereafter gave the plaintiff the option of purchasing said lands from the state of Washington at a certain price placed thereon by the said state of Washington, or of vacating and relinquishing said premises. Sixth. That the title of said state of Washington to said lands was perfect and unassailable, and a title paramount to that conveyed by the defendant to the plaintiff; and all of plaintiff's valuable improvements, exceeding in value the sum of twenty thousand dollars, and its business established and carried on on said premises, were all situated on the tide lands of the state of Washington as shown by the plat hereunto annexed, and made a part hereof, and marked 'Exhibit A,' and, in order to protect and save the same, plaintiff was obliged to pay and did pay to the state of Washington for said seventy-seven thousand five hundred seventy-one and five-tenths (77,571.5) square feet on said premises so conveyed by the defendant to the plaintiff the sum of one thousand five hundred twenty-two and 72/100 dollars ($1,522.72) in lawful money, and acquired the title of the state thereto, and received a conveyance therefor from said state of Washington. Wherefore plaintiff demands judgment against the defendant for the sum of one thousand five hundred...