35 Wash. 529 | Wash. | 1904
This is an action to compel the delivery of personal property levied upon by the sheriff. The appellant, Eliza A. Hill, is the claimant. In pursuance of § 5262, Bal. Code, she filed an affidavit, which alleges, that the respondent Parrish commenced an action against E. Hill, and caused a writ of attachment to issue therein, which writ was delivered to respondent Gardner, as sheriff, and that the latter was directed to immediately levy upon the property of said E. Hill; that, under said writ of attachment, said sheriff levied upon and took possession of four horses, which are described in the affidavit; that said property was and is the sole and separate property of said Eliza A. Hill, and that no one else had or has any right to the possession thereof; that said E. Hill had neither any interest therein nor right of possession thereto. The value of the property is laid at $300, and it is alleged that a demand was made upon the sheriff and said Parrish for its delivery to said claimant, which was refused. The claimant, Eliza A. Hill, is the wife of said
Respondents moved to dismiss the appeal, for the alleged reason that the notice of appeal was not served upon the sureties upon the redelivery bond. The record shows a service purporting to have been acknowledged in writing by the sureties themselves. Their signatures to the acceptance of service are witnessed by the signature of H. H. Martin, an attorney of this court, and the counsel for appellant. We also find in the record an affidavit of said Martin, showing due service made by him upon the bondsmen. The service is sufficiently shown, and the motion to dismiss the appeal is denied.
It is argued that the court erred in finding that the property levied upon was, at the time of the levy, the community property of appellant and her husband, and was not the separate property of appellant. The only witnesses offered in behalf of appellant upon the question of ownership were her son and husband. The former’ simply testified, in a general way, that he had always understood that the horses belonged to his mother, and that he had always heard them referred to in the family as her property. The husband testified that about thirty years ago the appellant received about $1,000 from her father, and that she has since kept that money separately invested. He undertook to trace the investment of the money down to and including the horses in question, following it through a number of investments, sales, and reinvestments. At the close of the testimony for appellant, respondents moved for a nonsuit upon the ground
It is next complained that judgment was entered for $300 as the value of the property. The only evidence upon the subject of value was that of the husband who said, “I am not posted on the prices of horses now. They are probably worth $50 apiece.” Under that statement the four horses were not worth to exceed $200. But, inasmuch as the appellant herself alleged in her affidavit that the value was $300, we think she is bound thereby and cannot now show a less value. The undertaking of herself and sureties also recited that if she should fail to make good her title she would return the property, “or pay its value as stated in said affidavit.” Both appellant and the sureties have, therefore, fixed the value at $300, and cannot now be heard to dispute it.
It is contended that the court was not authorized to enter the kind of judgment which was entered. It is simply for the recovery of $300, as the value of the property, with interest thereon. Section 5266, Bal. Code, provides that the judgment shall be for the value, “or for such less amount as shall not exceed the amount due on the original execution or attachment.” There is nothing
It is further urged that the judgment does not provide in the alternative that appellant shall return the property or pay its value. Section 5262, supra, shows that such is her right, and § 5266, supra, must be construed in connection with the former one. In said particular we think the judgment was erroneous.
Further complaint is made of the judgment in that it provides for the recovery of six per cent interest per annum upon the amount of the judgment, from the date of the affidavit made by appellant when she sought possession of the property. The judgment was entered more than a year after said date, and there was thus added to the value of the property more than $18 as interest. We believe no authority exists in this special proceeding for the recovery of interest. The statute does not so provide. It merely contemplates the return of the property or the payment of .its value, and that is all that the sureties undertook to do. This judgment is against them as well as against appellant. The only theory upon which interest could be allowed would be that it is in the nature of compensation, as damages for the detention of the property; but the statute does not provide for the adjustment of damages in this proceeding. We think it was error to include interest in the judgment, which accrued prior to its date.
It is therefore the order of this court that the judgment phall be modified, so as to eliminate the provision for recovery of interest prior to the date of the judgment, and so as to further provide, in the alternative, for the re
Mount, Anders, and Dunbar, JJ., concur.