124 Wash. 691 | Wash. | 1923
— From the partial record brought up on this appeal, it appears that respondent, Bair, on October 13,1921, brought an action in the superior court against W. A. Wiese and others (appellant Hyland not being made a party), in which action there was sought the foreclosure of a certain chattel mortgage made by Wiese, and the reformation and foreclosure of a certain crop mortgage given by Wiese to further secure the same debt. Apparently, in his complaint respondent alleged that, through mutual error and mistake, the crop mortgage, by its terms, covered two-thirds of the crop grown, or to be grown, on the northwest quarter of section 21, township 24 north, range 37, E. W. M., while in fact the parties intended that the mortgage should describe and encumber two-thirds of the crop grown, or to be grown, on the southwest quarter of section 15, in the same township and range.
On October 14, 1921, appellant Hyland, as plaintiff, brought an action in the same court against Wiese, as defendant, and others as garnishee defendants, seeking thereby to obtain a judgment against Wiese in the sum of $525.90 upon open accounts for merchandise, the first cause of action being for merchandise sold and delivered by Hyland to Wiese between May 1, 1920, and October 31, 1921, and subsequent causes of action were based upon other similar open accounts which had been ‘duly assigned to Hyland. ' A writ or writs of garnishment were sued out in this action, and o'n'é 'süch
The facts as found by the trial court are not in any way attacked or controverted, but it is contended that •the court erred in his conclusions of law. The conclusion of law upon which the attack is centered reads as follows:
“That as to the proceeds of the wheat in the hands of the Clerk of this Court, to wit, the sum of $675.60, both the plaintiff H. W. Bair and the plaintiff E. E. .Hyland have liens thereon as against the defendant Wiese, but as between said Bair and said Hyland neither have a lien against the said property which is enforcable against the other, and as to said fund Bair and Hyland as between themselves occupy the status of general creditors of Wiese, and that said fund of $675.60 should be pro rated and paid to Bair and Hyland according to the unsatisfied amounts of their respective judgments against Wiese. ’ ’
The judgment from which this appeal was taken conforms thereto.
The facts being in effect agreed to, the legal rights of the parties may be readily determined by well-settled principles of law.
Since appellant was wholly unaffected by the mortgage, why may he not pursue his remedy by garnishment against any property belonging to his debtor which had not been placed beyond his reach? The mere filing of a complaint in an action to which he was not a party, after he had become a creditor of Wiese, could not in anywise affect his rights. The allegations of the complaint as to the mutual mistake might be unfounded, or fail of proof, but however that may be, whatever notice they afforded came too late, as his
The judgment is reversed, with directions to enter a judgment in accordance with the views here expressed.
Main, C. J., Fullerton, Bridges, and Pemberton, JJ., concur. •