Wilkinson v. Takesuye, 4974

• Decision Date: 20 October 1947
• Docket Number: 4974
• Citation: 66 Ariz. 205,185 P.2d 778
• Parties: WILKINSON v. TAKESUYE et al
• Court: Arizona Supreme Court

185 P.2d 778

66 Ariz. 205

WILKINSON v. TAKESUYE et al

No. 4974

Supreme Court of Arizona

October 20, 1947

Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.

Affirmed.

J. H Glenn and Kenneth C. Chatwin, both of Phoenix, for appellant.

Jennings & Tenney, of Phoenix, for appellees.

Udall Justice. Stanford, C. J., and LaPrade, J., concur.

OPINION

Udall Justice.

This suit, tried by the court sitting without a jury, involved a dispute between Frank Wilkinson Jr. and Harold Takesuye, two rival claimants in an interpleader action, over $ 1,050, the proceeds of a fire insurance policy admittedly owed by the Glens Falls Insurance Company, intervenor herein. The fire occurring March 3, 1946 destroyed a packing shed which the Company had insured.

The proceeding was initiated by Wilkinson in order to recover a private debt owing him by one Woodrow Wilson Johns, formerly in business with Takesuye. The debt grew out of three promissory notes executed and delivered by Johns on December 1, 1944 to Wilkinson aggregating, with interest and attorney's fees, $ 1,143. Wilkinson recovered judgment against Johns for this amount in the trial court, Johns failing to appear and answer, and from this judgment there is no appeal. The actual dispute in the case is whether or not Johns had any interest in the check from the Glens Falls Insurance Company (made payable to Johns, Takesuye, and the latter's attorneys, Jennings and Tenney) which Wilkinson garnished in hands of the local agent of the insurance company. The insurance company intervened, had the check in question deposited with the clerk of the court, and asked that the various claimants be required to interplead. The case now before us represents Wilkinson's appeal from the action of the trial court in quashing his writ of garnishment made necessary by its finding that Johns had no interest in the insurance proceeds.

Early in 1946 Johns and Takesuye entered into an oral agreement to form a partnership under the name of Western Farmers' Distributors, the purpose of which was to engage in the vegetable shipping business. It was agreed that each would advance $ 5,000 capital and that in due time the business would be incorporated. The shipping shed in question was acquired by the two men on February 10, 1946 who also took an assignment of the fire insurance policy from the former owner. Johns being unable to raise his portion of the agreed capital dropped out of the business and on April 13, 1946 these men executed a formal written dissolution of the partnership whereby Johns assigned all of his interest in the business to Takesuye in return for which the latter assumed all of the obligations of the company. There were no profits from this partnership venture and, in fact, serious losses occurred. The evidence discloses that Takesuye had invested some $ 6,000 of his money in the business as against no investment by Johns, and, in addition, Takesuye was called upon to pay an indebtedness of between $ 12,000 and $ 15,000 that was incurred during their brief operations.

The learned trial court in its findings of fact stated that: (1) "The obligation found by the Court to exist from Woodrow Wilson Johns to * * * Frank Wilkinson Jr., was not an...