56 Wash. 110 | Wash. | 1909
This action was commenced for the purpose of foreclosing a lien upon two blocks of corporation stock, evidenced by separate certificates, and to have the appellant Mary P. Bullock personally held as a trustee for certain dividends, which it was alleged she had received on the stock and failed to account for or pay over. The respondent held one of the certificates by a direct assignment from Walter F. Plunkett, the appellant’s intestate, and the other, together with the indebtedness it secured, by assignment from Charles H. Beyer, to whom it had been assigned by Plunkett. Each of the certificates was assigned by Plunkett as security for certain indebtedness. After Plunkett had assigned the one certificate to the respondent, he assigned his interest in it to the appellant, subject to the indebtedness which it secured.
The first error is assigned to the overruling of the demurrer. Where two or more defendants unite in a demurrer to the complaint and a good cause of action is stated against one or more of them, the demurrer will be wholly overruled, and the same rule will be applied to an answer. Pomeroy, Code Remedies (3d ed.), §606. A good cause of action was stated against the appellant as administratrix of the Plunkett estate, and the demurrer was therefore properly overruled.
Prior to the commencement of the action, the respondent and Charles H. Beyer each commenced an action against the appellant, as administratrix, to require her to pay certain dividends, which in each case it was alleged she had received on the stock. These suits were commenced before Charles H. Beyer had assigned his certificate to the respondent. Thereafter and on April 4, 1907, the appellant administratrix paid to the attorneys for the plaintiffs therein, they being each represented by the same counsel, the sum of $600 for the purpose of having the suits dismissed. A receipt was given her at the time of payment, stating that the money had been paid in the two cases. One-half the payment was applied upon the indebtedness in favor of the respondent, and the balance was applied upon the indebtedness in favor of Charles H. Beyer. This action was commenced in December, 1907, and about eight months after such payment. The contention is now made that the entire $600 was the individual money of the appellant Bullock, and that it should all be applied upon the indebtedness secured by the stock she now owns. She made no such claim at the time of pay
Rudkin, C. J., Chadwick, and Fullerton, JJ., concur. Morris, J., took no part.