West Philadelphia Title & Trust Co. v. City of Olympia

• Decision Date: 26 March 1898
• Citation: 52 P. 1015,19 Wash. 150
• Court: Washington Supreme Court
• Parties: WEST PHILADELPHIA TITLE & TRUST CO. v. CITY OF OLYMPIA ET AL.

52 P. 1015

19 Wash. 150

WEST PHILADELPHIA TITLE & TRUST CO. v. CITY OF OLYMPIA ET AL.

Supreme Court of Washington

March 26, 1898

Appeal from superior court, Thurston county; Charles H. Ayer, Judge.

Action by the West Philadelphia Title & Trust Company against the city of Olympia and others. Judgment for plaintiff. Defendants appealed. Reversed.

P. M. Troy, City Atty., and A. J. Falknor, for appellants.

Frank D. Nash and O. V. Linn, for respondent.

REAVIS J.

This action was commenced in the superior court of Thurston county, August 20, 1896, to vacate a portion of the decree rendered by the same court in the case of W. J. Casebeer plaintiff, against I. Liberman and the city of Olympia defendants. The original cause was tried July 3, 1891, and the court at that date rendered its decision. The final order or decree therein was signed on July 8, 1891, and filed with the clerk January 23, 1892. The complaint states a cause of action in favor of I. Liberman upon a contract for grading and improving a street in the city of Olympia; that Liberman under said contract, performed work and labor; and that for such services there were issued and delivered to him in payment certain warrants drawn on a street grade fund, which warrants were transferred by Liberman to Thomas & Co., and by them to plaintiff; the demand by plaintiff for payment of the warrants; and refusal by the city treasurer to pay the same. The complaint also states that about June 8, 1891, W. J Casebeer commenced the action heretofore mentioned in the same court against the city of Olympia and said Liberman, in which he prayed that the city of Olympia and its officers be restrained from executing or delivering to Liberman any warrant or other evidence of indebtedness, or paying him any money, for labor performed in grading and improving said street, and from exercising any acts under his contract; that, upon the commencement of such suit, a temporary injunction was issued by the court, and afterwards dissolved; that on the 3d of July, 1891, the action was tried, and on January 23, 1892, the findings of fact and conclusions of law were filed; that a portion of the conclusions of law was "that said plaintiff was and is entitled to a restraining order and injunction of this court restraining the defendant the city of Olympia from issuing to defendant I. Liberman any warrant or other evidence of indebtedness for any work done by him under or pursuant to the alleged contract aforesaid, and from paying to him, or to any one for him, or upon any warrant or other evidence of indebtedness which may have been issued, any sums of money whatever; and it is therefore ordered and adjudged that the defendant the city of Olympia, its agents and officers, each and all are perpetually restrained and enjoined from issuing or delivering to defendant Liberman any warrant or other evidence of indebtedness, or from paying to him or to any one for him any sum of money whatever, by reason of any work done upon Franklin St. by defendant I. Liberman, as aforesaid; and defendant I. Liberman is restrained and enjoined from exercising any and all rights under and by virtue of the alleged contract aforesaid." And it also alleges that no other or further order or judgment was made or entered in the action. It is also alleged that the warrants in question were issued before the trial of the suit of Casebeer against Olympia and Liberman, and that the warrants were transferred by Liberman to Thomas & Co. prior to the filing of the findings of fact and conclusions of law. It is also alleged that the labor performed by Liberman in improving Franklin street was fairly and reasonably worth the amount represented by the warrants, and that the city of Olympia has used and enjoyed the benefits of the work performed by Liberman on the improvements. Plaintiff also alleges that in the year 1891 the city of Olympia caused an assessment to be made on all the lots and parts of lots fronting upon Franklin street for the whole cost of making the improvements, including the value of the work performed by defendant Liberman, and that the city is proceeding to collect from the proper owners the total cost of the improvements, including the work performed by...