50 Wash. 119 | Wash. | 1908
Action by A. A. Mack and Frank Davis, co-partners as Mack & Davis, against Howard B. Doak, as sheriff of Spokane county, and the National Surety Company,
The only assignment of error is that the trial court erred in sustaining the respondents’ motion and dismissing the action. The pleadings and opening statement show, that appellants were conducting a restaurant and saloon business in the city of Spokane; that they owned and were in the possession of certain furniture, fixtures, utensils, and other personal property which they, used as an equipment in their business; that on Maj 22, 1907, they executed and delivered to the' Continental Distributing Company, a corporation, a promissory note; that to secure its payment they also executed, in due and legal form, and delivered to the Continental Distributing Company their chattel mortgage on the personal property above mentioned; that claiming default in payment, the Continental Distributing Company, on July 6, 1907, instituted foreclosure proceedings by placing in the hands of respondent Howard B. Doak, as sheriff of Spokane county, a written notice which- in all respects conformed to the requirements of Bal. Code, § 5871 (P. C. § 6536); that thereupon respondent as such sheriff served the notice and took possession of the personal property therein described, against the protest and objection of the appellants; that he thereafter took all steps required by the statute for the foreclosure of such mortgage by notice and sale; that at the foreclosure sale the property was purchased by the Continental Distributing Company; that the appellants’ business was interrupted and destroyed, and that they claimed damages for the value of the property taken and for the loss of business profits.
In support of this contention they cite and rely upon McClellan v. Gaston, 18 Wash. 472, 51 Pac. 1062. That case does not sustain them in their position. There a mortgagee commenced foreclosure by equitable action and delivered the complaint and summons to the sheriff for service. Without further authority or process, the sheriff forcibly seized possession of the personal property against the protest and objection of the mortgagor. This court sustained an instruction to the effect that, without the consent of the mortgagor, the sheriff had no right under the summons and complaint to seize the mortgaged property, as their only purpose was to notify the defendant of the commencement and pendency of the action. Had the plaintiff desired to obtain possession of the property without the consent of the defendant, it was obligatory upon him in such equitable action to procure other process for that purpose. He did not do so, and the sheriff for exceeding his lawful authority was held liable for conversion.
The judgment is affirmed.
Rudkin, Fullerton, and Dunbar, JJ., concur.
Hadley, C. J., and Mount, J., took no part.