1 Wash. 89 | Wash. | 1890
Lead Opinion
The opinion of the court was delivered by
The defendants, Beckwith and Roderick,, appellees, move to strike the notice of appeal, and the statement of facts, and to dismiss the case for the following reasons: That no notice of appeal was given, and no notice to said appellees to appear at the time the statement of facts was settled; that the statement of facts is not connected with the transcript, or sufficiently identified to be considered in the case; that the transcript was not filed within the time prescribed by law; and that the instructions given by the court to the jury are not all here.
The transcript shows that notice was served June 12th,. 1888, on appellees by appellants, that they would give notice of an appeal August 18th, 1888, at an hour therein specified, before the judge at chambers, who tried the cause below, and would also apply at the same time to
As to the further point that the transcript was not filed within the time prescribed by law: It appears that it was filed December 27th, 1888, less than fifteen days before the first day of the next term of the supreme court thereafter; this appears to be contrary to the provisions of \ 460 of the code, taken in connection with £ 1 of the appeal act of 1883, requiring the transcript to be filed in this court within the time required by law, as $ 460 is the only place where the time of filing is specified. The supreme court, in the ease of Turner v. Saxon, 3 Wash. T. 473, where the question of notice only was involved, which is excepted in the act of 1883 from the operation of any other law, held that § 460 does not apply to cases appealed under the 1883 act. We are of the opinion that it does apply as to the time of filing the cause, but appellees not having taken advantage of such failure, in the manner provided by § 461 of the code, or before the transcript was filed, their objections will not be allowed to prevail.
As to the last point made, that the instructions are not all here, it appears that three instructions were given at the trial, and only two are contained in the record. There was no request or attempt by any of the parties to have the other one brought up. The instructions here are contained in the statement which is duly certified by the judge to contain all the material facts in the cause. It is not claimed by the appellees that the instruction omitted is material, nor do they ask to have it brought here, and as all the parties to the action and the judge who tried the cause seem to have regarded it as unimportant for a fair
■ The motion to dismiss is therefore overruled.
Opinion on the Merits
OPINION ON THE MERITS.
This was an action brought by appellants against the sheriff of Chehalis county and his bondsmen, for failure to proceed under certain executions issued upon judgments in favor of plaintiffs against J. D. Mace and Harvey C. Minkler, who were partners doing business under the firm name of J. D. Mace & Go.
It appears that on the 30th day of September, 1884, I. K. Dawson commenced suit against said J. D. Mace individually, and therein on said date attached certain property belonging to said firm. Subsequently the plaintiffs herein commenced suit against the firm and obtained the judgments upon which said executions were issued. It appears that writs of attachment were first issued in said actions and were levied upon the same property seized in the suit begun by Dawson, but were subsequent thereto, and also by the sheriff’s return it appears that such levies for plaintiffs were made subject to the seizure for Dawson. Judgment was rendered in the suit brought by Dawson against J. D. Mace, and execution issued therein and levied upon the property previously attached, but before a sale the plaintiffs obtained judgments in their actions and had executions issued to the sheriff. The sheriff sold the goods under the prior execution, and Dawson received the proceeds thereof, whereupon plaintiffs brought this action upon his official bond, claiming said goods should have been sold under their writs for their benefit.
As one of his defences thereto, the sheriff alleged that he demanded an indemnifying bond of plaintiffs, which they
Tbe court in effect instructed tbe jury that it was incumbent on plaintiffs to tender tbe sheriff his fees in tbe first instance regardless of a demand, and § 2772 would seem to bear no other interpretation; but we bold it should be construed in connection with § 2099 of tbe code upon the same subject-matter. We see no reason why § 2099 should not have equal force with tbe section first cited; either statute literally interpreted conflicts with tbe other, and as some violence must be done to tbe language of one of them, we must give force to that construction which accords with good sense and justice. Therefore, we bold that the instruction was erroneous and that it was not necessary to tender tbe sheriff bis fees without any demand from bim tberefor.
But are plaintiffs in a position to take advantage of this error; were they injured thereby? Dawson bad a prior levy upon tbe property. It is true bis attachment and execution were only against one member of tbe firm, and tbe sheriff seized and sold tbe firm’s goods thereunder. In such a case tbe sheriff would ordinarily be justified in selling only tbe interest of the defendant partner therein, not the entire property. But there is nothing to show that tbe partner who was not a defendant in tbe Dawson suit objected in any way to tbe sheriff’s action, and for aught that appears, both members of tbe firm may have consented that the partnership property be taken by tbe sheriff to satisfy tbe individual debt. In such a case, in tbe absence of any fraud, tbe property might have become divested of its partnership character by virtue of the levy. It was incumbent on plaintiffs, if they desired to assert a superior claim to tbe firm’s property over Dawson, to have taken
The judgment of the court below is therefore affirmed.
Concurrence Opinion
I concur in the affirmance for the reason that, in my judgment, the plaintiffs had adequate means at their disposal to have the question of the title of the property and the correctness of the sheriff’s action determined in proceedings for that purpose. With such means at hand they could not force upon the sheriff the dilemma of deciding the question of title, and then'take advantage of his error by an action for damages.
Concurrence Opinion
I concur in the result, but I do not think the court below erred in instructing the jury that the sheriff would not be liable unless his fees were tendered him. The instruction was in the exact language of the statute, and therefore, in my opinion, not erroneous.