Hall v. Woolery, No. 2983

No. 2983 | Wash. | Dec 28, 1898

The opinion of the court was delivered by

Gordon, J.

Plaintiff is the wife of Charles J. Hall. She brought this action to recover possession of certain personal property which the complaint alleges was owned by her in her own right. The defendant was sheriff of King county, and as such sheriff, under an execution against the property of plaintiff’s husband and one George B. Hall, levied upon the property here in suit. The case was tried to a jury and a verdict rendered in plaintiff’s favor, upon which judgment was entered, and the defendant has appealed.

1. It appears that in October, 1894, this action was dismissed because of plaintiff’s failure to furnish security for costs; that it was subsequently reinstated, the order reinstating the cause reciting that “the same hereby is reinstated on the trial calendar, and the petition to set aside the judgment of dismissal heretofore entered in this cause is sustained.” Appellant complains of the order reinstating the cause, but has not brought to this court the petition upon which it was based, and it must be presumed that it was sufficient to authorize the action taken.

2. After the commencement of this action, suit was instituted by John U. Brookman and wife against the State Insurance Company, to recover possession of a portion of the property involved herein; and the court sustained appellant’s motion to abate until the termination of the Brookman action, but subsequently set the cause for trial and refused a continuance. We think the court committed palpable error in entering the order abating this action during the pendency of the other case. This action was commenced prior to the other, and there was no identity of parties or of subject matter. Under such circumstances the order constituted no bar to the setting of the cause for trial. The orders were made by the same court in the same action, and the last order made should operate to revoke the former one. At all events, it was right, and forms no basis for an exception.

3. There was no demurrer to the complaint, but defendant’s counsel objected to the introduction of any evidence, on the ground that it does not appear therefrom that any part of the property in controversy was situated in King county at the time of commencing the action. In the absence of a demurrer seasonably interposed, the complaint is entitled to be most liberally construed. It alleges that the defendant, as sheriff of King county, at plaintiff’s ranch in that county, took possession of and converted the property and still detains the same. This we think sufficient, under the rule above stated.

4. The charge of the court, considered as a whole, was eminently fair and correctly stated the law. The evidence .was conflicting, and the verdict rendered must be sustained. We have discovered nothing in the record calling for a reversal, and the judgment is affirmed.

Scott, O. J., and Dunbar, Anders and Reavis, JJ., concur.