Williams v. Gallick

• Decision Date: 13 February 1884
• Citation: 11 Or. 337,3 P. 469
• Parties: WILLIAMS v. GALLICK.
• Court: Oregon Supreme Court

3 P. 469

11 Or. 337

WILLIAMS v. GALLICK.

Supreme Court of Oregon

February 13, 1884

Appeal from Multnomah county.

Dolph &amp Simon, for appellant.

William Strong & Sons, for respondent.

WATSON C.J.

This is an appeal from a judgment againt a garnishee in proceedings supplemental to execution in an action at law. The facts essential to a proper understanding of the case are these:

In the month of July, 1879, Comstock & Pfluger, the principal debtors, transferred a large amount of personal property to William Gallick, the appellant, to secure him, as accommodation indorser of their notes, to the amount of about $26,900, with power to sell so much of the property as might be necessary to discharge said notes at maturity, and pay all expenses of keeping and disposing thereof, and the surplus of the property, or its proceeds, to be delivered or paid over to them. Previous to this, however, on May 20, 1879, R Williams, the respondent, had recovered judgment against Comstock & Pfluger for $6,000, with interest from May 7, 1879, at 12 per cent. per annum, and costs, in the circuit court for Multnomah county. On January 21, 1880, respondent caused a notice of garnishment to be served on the appellant under an execution issued on said judgment. The latter gave the sheriff a certificate to the effect that Comstock &amp Pfluger had no property in his hands, and that he was not indebted to them in any amount whatever. Thereupon this proceeding, supplemental to execution, was instituted by the respondent. Appellant verified his answer to the written allegations of the respondent February 17, 1880, and filed the same, with his answers, to the respondent's written interrogatories, on the twenty-first day of the same month. On August 10, 1880, he verified and filed his "supplemental answer," in which he claims that prior to the service of the notice of garnishment upon him, on January 21, 1880, he had indorsed two additional notes of Comstock & Pfluger, amounting in the aggregate to $1,750, under an agreement with them to hold the property for security, with power to sell and to pay off these notes, similar to the one previously entered into in regard to the notes first indorsed. The issues made by the pleadings were submitted to a referee, who found that the property was simply pledged to the appellant in the first instance to secure him against the payment of the notes first indorsed by him for Comstock & Pfluger, with a power to sell such property, or sufficient thereof, to pay all the notes so indorsed and the costs and expenses of making such sale, the residue to be returned to them. He also found that the alleged subsequent agreement between the appellant and Comstock & Pfluger with respect to the two notes, amounting to $1,750, was not made until after the service of the notice of garnishment, and that, although in the name of the firm, it was executed by Pfluger alone, without Comstock's knowledge or assent. At the time the notice of garnishment was served on the appellant he had a large portion of the property still in his hands undisposed of, and a large amount remained unpaid on the notes first indorsed by him, but previous to the trial before the referee he had disposed of all the property and discharged such notes, together with the expenses of selling the property, out of the proceeds. The referee took an account of the sales, expenses, and payments in settlement of the notes first indorsed, from which he found that the amount received by appellant from sales, up to April 2, 1880, was sufficient to pay all that was due by the notes first indorsed, and the expenses of making such sales, and that the amount afterwards received by him of the remainder of the property was $2,444.59, from which nothing should be deducted as expenses of making such sales. The court below confirmed the report, except as to the expenses of sales after April 2, 1880, amounting to $720, which it allowed the appellant, and rendered judgment against him for the balance of $1,724.59.

This is a proceeding at law, as has already been decided by this court. Knowles v. Herbert, 11 Or.---. We can therefore only examine the judgment appealed from upon the grounds assigned in the notice of appeal, and affirm, modify or reverse, as we find the substantial rights of appellant affected by the errors alleged. The respondent, not having appealed from the judgment, must be presumed to be satisfied with it. Code, 534. The referee found that the transfer of the property of Comstock & Pfluger to the appellant was a mere pledge for his own security, with a power to sell enough to pay off the notes indorsed by him at the time thereof, and the necessary expenses incurred in making such sale. This finding was not objected to by the appellant while the motion to confirm the report was pending in the court below. But if it had been, it could not be said that there was not sufficient evidence to support it, so as to render the order of the lower court, confirming the report, reviewable here on this ground. Whatever our conclusion might be from the evidence, if we were at liberty to consider it, we feel bound,...