Campbell v. Nichols

131 Wash. 1 | Wash. | 1924

Per Curiam.

In December, 1920, plaintiffs brought suit to collect from the defendant Nichols upon a promissory note, and .asked, that a receiver be appointed for the property of defendant. Defendant appeared, admitted- the allegations of the complaint, confessed that he was insolvent, and a receiver necessary. Respondent was thereupon appointed receiver on December 28, 1920, and on December 31, duly qualified as such receiver. He thereupon took possession of the farms and personal property of defendant Nichols, including about 800 bushels of wheat and five tons of feed, all of which personal property was afterwards disposed of by him in the administration of the estate. Upon his appointment, respondent gave notice thereof, and notified all creditors of the insolvent to present their claims within a specified time. On February 3, 1921, appellant filed his claim for services as a farm laborer for himself and his wife, amounting to a balance of $952.35, for services ending December 31, 1920. At the same time, he presented the claim of one Gipson for $50, being the balance due for labor upon the farm of the insolvent, assigned to appellant.

At about tbe time of filing tbe claims for services with the receiver, appellant claims, and supports his claim by the affidavits of himself and the defendant Nichols, that he was advised by the receiver that his claim, being for labor on the farm, was a preferred claim, and no doubt would be allowed as such by the receiver when the right time came; that, acting on this advice and the belief that his claim would be made a preferred claim and paid as such, appellant suffered the time to elapse within which a farm laborer’s lien was required to be filed for record under the then existing statute. These affidavits are contradicted by the affidavit of Fraser, the receiver. A motion of appellant to have these claims adjudged to be preferred claims and paid prior to other claims against the insolvent was not presented and filed until September 21, 1922.

On September 26, 1922, tbe cause was brought on for hearing before tbe trial court, and on September 22,1923, tbe trial court made an order tbat tbe motion of appellant be granted, subject to tbe following reservations: “Tbat tbe claim of appellant be declared to be subject, secondary and inferior to tbe general taxes upon tbe property of defendant; tbe mortgages, including interest tbereon, owed by tbe estate; tbe receiver’s expenses, including compensation for himself and bis attorneys, and tbe cost of operation of tbe farm of defendant, as well as receiver’s certificates heretofore issued by tbe receiver, together with interest tbereon. Tbat subject to such liens, charges and expenses, tbe claim of appellant be and the same is hereby recognized as a preferred claim.”

From this order appellant appeals, giving notice thereof to tbe clerk of tbe superior court, and to Freece & Pettijobn, attorneys for tbe receiver, J. E. Fraser. Service of tbe notice of appeal was admitted by Freece & Pettijobn, attorneys for tbe receiver, J. E. Fraser, on December 14, 1923. No notice of appeal was given to tbe plaintiffs in tbe original action, Campbell & McKinnon. Freece & Pettijobn appeared for tbe plaintiffs in tbe original action, and also for tbe receiver.

Respondents moved to dismiss tbe appeal and affirm the order on two grounds; first, tbat tbe notice of appeal was not served within tbe time limited by law; and second, tbat necessary and interested parties to tbe action were not served with tbe notice of appeal.

Tbe first ground is not good. Tbe contention of respondent is tbat tbe order appealed from by appellant was not a final order, and tbat therefore an appeal taken fifty-three days after its entry is ineffectual, cannot be sustained. The order is a final order adjudging the rank and priorities of the claims, finally and absolutely. Therefore, under our statute as to appeals, it is a final order.

But, although extremely loath so to do, we feel compelled to grant the motion on the second ground. Plaintiffs in the original action are general creditors, and were therefore interested in, and would be adversely affected by, a reversal of the final order appealed from. That being so, they are necessary parties to the appeal. The cause is therefore governed by our decisions in Raymond Co. v. Little Falls Fire Clay Co., 72 Wash. 209, 130 Pac. 93, and Cole v. Washington Motion Picture Corp., 112 Wash. 548, 192 Pac. 972.

The appeal must, therefore, be dismissed.

It is so ordered.