Whittaker v. Weller

• Court: Washington Supreme Court
• Writing for the Court: STEINERT, Justice.
• Citation: Whittaker v. Weller, 152 P.2d 957, 21 Wn.2d 716 (Wash. 1944)
• Decision Date: 06 November 1944
• Docket Number: 29443.
• Parties: WHITTAKER v. WELLER et al.

152 P.2d 957

21 Wn.2d 716

WHITTAKER v. WELLER et al.

No. 29443.

Supreme Court of Washington

November 6, 1944

Rehearing Granted Dec. 18, 1944.

Department 1.

Action by Norman A. Whittaker, as receiver for Bactericidal Ray Sales Corporation, against E. R. Weller and the marital community consisting of E. R. Weller and his wife, to recover the balance due on a note, wherein plaintiff recovered a judgment against defendants and procured a writ of garnishment directed to a third party. From an order denying defendants' motion to dismiss the writ of garnishment and allowing recovery against garnishee-defendant, defendants appeal and plaintiff moves to dismiss the appeal.

Appeal dismissed.

GRADY J., dissening.

Appeal from order denying judgment debtors' motion to dismiss writ of garnishment was not subject to dismissal for failure to file statement of facts, where, though statement of facts was originally procured and filed for purpose of applying to Supreme Court for writ of prohibition to restrain proceedings in garnishment, it was certified by trial court with consent of counsel for both parties and by stipulation of counsel was withdrawn and refiled for use in the appeal.

Supreme Court must assume that affidavit which record indicated largely influenced trial court's decision, but which was not made a part of the record, was sufficient to support ruling made thereon by trial court.

Appeal from Superior Court, King County; Calvin S. Hall, judge.

W. B. Magee and Arthur H. Hutchinson, both of Seattle, for appellants.

H. S Sanford, of Seattle, for respondent.

STEINERT Justice.

This is an appeal by the defendants E. R. Weller and the marital community consisting of himself and his wife, judgment debtors in the action, from an order denying their motion to dismiss a writ of garnishment after judgment and simultaneously allowing plaintiff recovery against the garnishee defendant in an amount found to be owing by the garnishee to the defendant husband. We shall hereinafter refer to E. R. Weller, the husband, as though he were the sole appellant in the case.

In May 1940, respondent as receiver for a corporation obtained judgment against the appellant in the sum of $3,335, which represented the balance owing upon appellant's promissory note together with an attorney's fee fixed by the trial court. Upon appeal to this court, the judgment was affirmed on March 10, 1941. Whittaker v. Weller, 8 Wash.2d 18, 111 P.2d 218.

The judgment not having been paid, respondent on April 4, 1944, procured a writ of garnishment directed to a third party, a corporation. The garnishee defendant answered, disclosing that it was indebted to the appellant in a substantial amount. Appellant thereupon appeared in that proceeding and moved the court for an order dismissing the writ of garnishment, on the ground that he had previously been adjudicated a bankrupt and thereafter had been duly and regularly discharged from all provable debts and claims. Attached to and made a part of this motion for dismissal of the writ of garnishment was appellant's affidavit reciting that he had filed his petition in bankruptcy and been adjudged a bankrupt on May 12, 1942; that respondent had been duly listed as a creditor of the bankrupt in the amount of the judgment above mentioned; that in the course of the bankruptcy proceeding respondent had filed charges of fraud against the bankrupt and had made objections to the bankrupt's procuring a discharge; that in response to those objections appellant had filed his answer denying the charges of fraud; that the matter was then duly set down for hearing Before the referee on the respondent's objections; that respondent was duly notified of such hearing, but failed to appear thereat; and that the referee in bankruptcy thereupon overruled the objections and, pursuant to the provisions of the national Bankruptcy Act, 11 U.S.C.A. § 1 et seq., discharged the appellant.

It appears from the clerk's transcript of the record on this appeal, and it is conceded by both parties, that respondent filed, in opposition to appellant's motion for dismissal of the writ, a counter-affidavit denying the material portions of appellant's affidavit and, in turn, setting forth affirmative grounds for denying appellant's motion. So far as this same record discloses, these affirmative allegations of respondent's counter-affidavit were not controverted by appellant. For reasons stated a little later herein, however, we are not permitted to take cognizance of or to consider respondent's counter-affidavit further than to say that it was presented to, and considered by, the trial court. We therefore will not recite the contents of the counter-affidavit, although it appears as a part of the transcript.

The instant cause came on regularly for hearing Before the superior court on appeallant's motion to discharge the writ of garnishment. The hearing was very brief, so far as the record furnishes any light. Appellant's counsel made an opening statement to the effect that he was basing his motion on appellant's previous discharge in bankruptcy and thereupon introduced in evidence, as exhibits, certified copies of the material portions of the record in the bankruptcy proceeding as detailed above. No testimony was taken at the hearing, and the cause appears to have been heard and decided by the trial court upon the affidavits on file, the original pleadings in the main case, and the exhibits introduced by the appellant. After argument by counsel the court rendered an oral decision as follows:

'I will hold that the affidavit shows that the note in question was procured by fraud and that the defendant [appellant] Weller was not discharged from liability thereon by the order of discharge in the bankruptcy proceedings; that fraud was had in connection with the giving of the promissory note. I will deny the motion to dismiss the proceeding.' (Italics ours.)

Some time thereafter, the trial court entered a formal order denying appellant's motion to dismiss the writ of garnishment and directing entry of judgment against the garnishee defendant in the amount found by the court to be owing by the garnishee to the appellant. That order contained, inter alia, the following recitals and directions:

'* * * and the court having heard the arguments of respective counsels and having read the affidavits of the plaintiff [respondent] and the defendant [appellant], and having examined the records of said cause and the records of the court; it appearing that the plaintiff has a judgment against the defendant * * * which has not been paid or satisfied; and it appearing that the defendant, subsequent to the entry of said judgment, obtained a discharge in bankruptcy; and it further appearing that the transaction out of which the plaintiff obtained judgment herein was the result of fraud practiced by the said defendant, and that said judgment has not been discharged by the proceedings of bankruptcy; and the court having considered the argument of counsel and being in the premises fully advised, now therefore.

'It is ordered, adjudged and decreed that the judgment of the plaintiff against the defendant in the above-entitled action has not been discharged by the discharge in bankruptcy of the defendant, E. R. Weller.

'It is further ordered that the Motion to Dismiss Writ of Garnishment issued herein to the Boeing Aircraft Company be and the same is hereby denied.

'It is further ordered that the plaintiff have and recover judgment against the Boeing Aircraft Company, garnishee defendant, in the sum of $235.57.' (Italics ours.)

Prior to the entry of the foregoing order, appellant made application to this court for a writ of prohibition to restrain the trial court from proceeding further in the garnishment matter. In response to the show cause order which was thereupon issued, a return was made, and upon a hearing thereon appellant's application for the writ was denied. In due course, the order, recited in part above, denying appellant's motion to dismiss the writ of garnishment, was entered by the trial court, and from that order this appeal was taken.

Appellant's contention, as urged in his brief on appeal, is that the order of discharge, entered by the referee in bankruptcy after overruling respondent's objections to such discharge on the ground of fraud perpetrated by the bankrupt appellant, is res judicata and a bar to a subsequent hearing Before the superior court on the same issue and, further, that the fraud charged by the respondent, and found by the superior court, is not the kind of fraud which is intended by the Bankruptcy Act to be excepted from discharge.

Although the respondent has also discussed these questions in his brief, he has first moved this court to dismiss the appeal on the grounds (1) that appellant failed to file a statement of facts in the manner required by law, and (2) that the affidavits on which the trial court based its order denying appellant's motion have not been brought to this court by the statement of facts and that therefore the order cannot be reviewed. We must first consider respondent's motion and if either of the grounds assigned are well taken the motion to dismiss the appeal will have to be granted, regardless of what otherwise might be held on the merits of the controversy.

On the first ground assigned by respondent, his contention is that the statement of facts was procured solely for the purpose of applying to this court for the writ of prohibition referred to above and that the statement therefore cannot be used for the purpose of this appeal, and, further, that no notice of the presentation of the statement of facts to the trial court for certification or of appellant's application for use of the...