Wolferman v. Bell
| Decision Date | 26 January 1894 |
| Citation | 8 Wash. 140,35 P. 603 |
| Parties | WOLFERMAN v. BELL ET AL. |
| Court | Washington Supreme Court |
Application of Harry C. Bell and another to modify a judgment (32 P 1017) against them in favor of Laura Wolferman. Denied.
This action was commenced in the superior court of Spokane county in November, 1891, and was tried, and a decree of foreclosure entered in June, 1892, upon the sole issue as to whether the alleged alteration in the notes should invalidate them. The case was appealed, and heard by this court January 10, 1893 upon the same issue, and a decision was filed March 9th following affirming the decree. 6 Wash. 84, 32 P. 1017. A petition for rehearing was filed April 8th, containing matters pertinent to the decision only, and that petition was denied May 8th. Subsequently, and in November, 1893, a petition was filed in the superior court to modify the decree which had been affirmed, and this court prohibited the exercise of jurisdiction therein. State v. Superior Court, 34 P 930, (decided Nov. 7, 1893.) In deciding the matter of the prohibition, we remarked, in substance, that, when a judgment or decree had been affirmed by this court, all applications for a modification of such judgment or decree must be addressed to this court alone. Upon this hint, as counsel explain, a petition has now been filed, praying that, upon the showing made, the remittitur be recalled, that the decree be modified so as to exclude certain portions of the mortgaged premises, and that the cause be remanded to the superior court, with instructions to permit the answer to be amended so that the partial defense hereinafter mentioned may be set up, and the rights of the parties to the excepted lands may be determined. The basis of this application is contained in the following facts: The deceased, Schneider, sold and conveyed to the appellant Bell, by warranty deed, the lands in question, and on the same day took in payment a sum of money and the notes and mortgage here in litigation. The deed covenanted that, if the purchaser should plat the land, the grantor would at any time, upon payment of $50, convey, by way of release, any lot to the purchaser thereof; but the mortgage contained no reference to the subject of releases. After the decease of Schneider, his administratrix executed a deed of release of certain lots in accordance with the covenant in the original deed, and two of these lots, having been conveyed by Bell and wife to a third person, were reconveyed by that person to Mrs. Bell, and the family home was erected thereon at an expense of several thousand dollars. When this suit was commenced, this deed of release was in the possession of the appellants, and was by them placed in the keeping of their attorneys, with the summons and other papers in the case. The answer set up the covenant in Schneider's deed; alleged that $2,000 had been paid, that no lots had been released, and that the respondent had been requested to release certain lots, but had refused. No particular lots were mentioned, and the existing release was not pleaded. The reply denied the new matter.
No evidence touching the subject of releases was adduced at the trial. The omission to...
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Woodward v. Perkins
...by the court on the appeal. Were the rule otherwise, as the authorities say, there would be no end to litigation.' In Wolferman v. Bell, 8 Wash. 140, 35 P. 603, 604, Supreme Court of Washington denied a petition to modify its judgment, stating: 'But, after the time fixed by law or the well-......
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... ... Rep. 867, 38 N.E. 937, 28 L. R. A. 129; Brown ... v. Buck, 75 Mich. 274, 13 Am. St. Rep. 438, 42 N.W. 827, ... 5 L. R. A. 226.) In Wolferman v. Bell, 8 Wash. 140, ... 35 P. 603, the same court held "that the heir cannot ... maintain ejectment, for the reason that the real estate is in ... ...
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...to vacate the judgment on one of the statutory grounds, in the event such an application is seasonably presented. Wolferman v. Bell, 8 Wash. 140, 35 P. 603; v. Springfield Fire & M. Ins. Co., 12 Wash. 631, 42 P. 119; Morton Organ Co. v. Armour, 179 Wash. 392, 38 P.2d 257. Assuming, without ......
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...attention to some of the cases which indicate the exceptions to the general rule recognized by this court. In the case of Wolferman v. Bell, 8 Wash. 140, 35 P. 603, 604, we denied a petition to modify judgment of this court, stating: 'But, after the time fixed by law or the well-established......