Whitehouse v. Point Defiance, T. & E. Ry. Co.

• Decision Date: 13 October 1894
• Court: Washington Supreme Court
• Parties: WHITEHOUSE v. POINT DEFIANCE, T. & E. RY. CO.

38 P. 152

9 Wash. 558

WHITEHOUSE v. POINT DEFIANCE, T. & E. RY. CO.

Supreme Court of Washington

Oct 13, 1894

Appeal from superior court, Pierce county; Emmet N. Parker, Judge.

Action by Joseph S. Whitehouse, as receiver of the Wapato Park Belt-Line Railway Company, against the Point Defiance, Tacoma & Edison Railway Company. From an order appointing a receiver for defendant, it appeals. Reversed.

Campbell & Powell and Crowley & Sullivan, for appellant.

A. R Titlow, for respondent.

DUNBAR C.J.

This is an appeal from an order or judgment of the superior court of Pierce county, made by the Honorable Emmet N. Parker, and entered August 29, 1893, appointing Joseph T. Mitchell a receiver of the appellant, the Point Defiance, Tacoma &amp Edison Railway Company. On or about the 9th day of February 1892, the Point Defiance, Tacoma & Edison Railway Company, a corporation, for an alleged valuable consideration, purchased from the Wapato Park Belt-Line Railway Company, a corporation, a certain line of railway situated in Tacoma, by deed dated February 9, 1892, made by said Wapato Park Belt-Line Railway Company as grantor, to this appellant, as grantee, which deed was duly executed and acknowledged by the grantor in the manner required by law; and said grantor, by its duly-authorized officers, delivered said deed to the appellant in this case on the said day of its execution, and at the same time delivered the quiet and peaceable possession of the said line of railway to the appellant, who continued in the quiet and peaceable possession thereof up to the time of the commencement of this action. About eight months thereafter, viz. September 30, 1892, one Otis Sprague, as receiver and assignee of the Tacoma & Puyallup Railroad Company, recovered against said Wapato Park Belt-Line Railway Company a judgment for $10,380.86. To this judgment plaintiff was not a party. Afterwards one S. R. Thomas recovered a judgment against the said Wapato Park Belt-Line Railway Company, in which action Joseph S. Whitehouse was appointed receiver, and of said action appellant had no notice, and was not made a party thereto. Now, on or about the 24th day of August, 1893, the said J. S. Whitehouse, as receiver of the said Wapato Park Belt-Line Railway Company, brought the action against this appellant in which this appeal is taken. On the same day on which this action was brought, the plaintiff, said Joseph S. Whitehouse, as receiver of the Wapato Park Belt-Line Railway Company, made an ex parte motion for an order that this appellant show cause why such receiver should not be continued until the final hearing of the cause. On that same day the superior court of Pierce county, by Hon. John C. Stallcup, made an ex parte order setting said motion for a receiver down for hearing the next morning at half past 9 o'clock, before the Honorable Emmet N. Parker, one of the judges of said court. Thereafter, on the 29th day of August, 1893, an order was made by the Honorable Emmet N. Parker appointing Joseph T. Mitchell a receiver of this appellant; and it is from this last order, appointing this receiver, that this appeal was taken. The motion was heard upon, and the order based on, the following papers in the case: On behalf of respondent, the complaint and the affidavit of Ansel Bates; on behalf of the appellant, the affidavit of Stuart Rice.

The first point made by the appellant-that the complaint does not state facts sufficient to constitute a cause of action, for the reason that it nowhere appears in the said complaint that said plaintiff has ever attempted to collect said judgment at law, and that it does not appear from the complaint that the judgment debtor has no other property out of which the plaintiff could satisfy his judgment-we do not think is well taken. The complaint, it is true, does not state in so many words that the debtor has no other property out of which the plaintiff could...