Mosley v. Donnell

42 Wash. 518 | Wash. | 1906

Mount, C. J.

— Respondent brought this action against the defendants toi recover the sum of $600, alleged to have been fraudulently obtained from him by the defendants, and to set aside a deed of certain lots in the town of Eorthport, from Louella Donnell to Albert Donnell, her husband, on the ground of fraud, and to subject said lots to the payment of plaintiff’s claim. At the time the action was brought, a writ of attachment was sued out and levied upon the said lots. Summons was served upon the defendants by publication. The appellant Albert Donnell appeared specially, and moved the court to quash the service of the summons. This motion was denied, and appellant then filed an answer, denying the allegations of the complaint. The defendant Louella Donnell made no appearance, and judgment was entered against her by default. The cause was tried to the court without a jury, and finding’s were made in favor of the plaintiff, and a decree entered as prayed for in the complaint. The defendant Albert Donnell appeals.

The facts are substantially as follows: In the year 1903, all the parties hereto' were residents of the town of Horthport, in this state. The plaintiff was a man fifty-two years of age. He and appellant were fellow workmen in the Horthport smelter, where they had been employed for about two years. They met about their work every day. Appellant was married to the defendant Louella Donnell, who was a common prostitute in the town of ISTorthport. The plaintiff had never met Mrs. Donnell. About the 1st of December, 1903, the plaintiff had accumulated about $600 in money, which he desired to invest in farm lands in Lincoln county. He had informed the appellant of his intentions. About the 1st day of December, 1903, he went to the train at Hiorthport, intending to go to Hartline, in Lincoln county, for the purpose of investing his money. An acquaintance met.him at the depot and went on the train with him and introduced him to appellant’s wife, stating that her name was Lou Blake Murray, and that she resided in Helson, British Columbia. At her invitation plaintiff sat in the seat beside her from Horthport to Spokane. On the way to Spokane Mrs. Donnell stated that she owned some timber land in Idaho, and was on her way to look at it, and invited plaintiff to go along with her. He consented, and they went to the land and looked it over. After they had examined the land, Mrs. Donnell proposed to borrow $600 from the plaintiff, and stated that she would give him a mortgage on the land to secure the repayment of the money: Plaintiff, relying upon her representations that she owned the land, made the loan and took her note and mortgage for the $600. Mrs. Donnell thereupon returned to Horthport, gave her husband a part of the money, and deeded two lots in ISTorthport to her husband without consideration, and departed for British Columbia. A day or two later the plaintiff discovered that Mrs. Donnell was the wife of the appellant, and that she had no interest in the land upon which she had given him a mortgage. The appellant Albert Donnell soon thereafter left ISTorthport, and went to British Columbia. Plaintiff thereupon brought this action:

Appellant contends, first, that the affidavit for publication is insufficient. The affidavit in this case is substantially the same as the one in Goore v. Goore, 2d Wash. 139, 63 Pac. 1092, which we held sufficient.

Assignments are made that the evidence is not sufficient to support several of the findings of fact. Each of these assignments is argued separately in the brief. It is unnecessary for us to consider them separately. The evidence is clear and positive to the point that the appellant’s wife, by misrepre^ sentation and fraud, obtained respondent’s money. There is no direct and positive evidence that the appellant was a party to the fraud, hut the circumstances surrounding the ease point very closely to the fact that the appellant himself instigated the fraud and was a party to it and received a portion of the proceeds. He was the only person who knew" that respondent had the money, and was going to Spokane with' it at the time stated. Appellant’s wife went to the train that morning ahead of respondent, and was introduced as another person by a mutual friend. She obtained the money fraudulently and came hack to Horthport, where she attempted to place her property there out of the reach of respondent by deeding it to her husband. She gave a part of the proceeds to her husband, and then left tbe state. Tbe appellant soon followed. Tbe appellant testified in tbe case in bis own bebalf, and bis evidence as we read it is very unsatisfactory. It is equivocal and contradictory, and does not appeal to us as tbe evidence of an innocent person. Tbe trial court was abundantly justified in its conclusion, and we tbink the judgment entered is in accordance witb tbe justice of tbe case.

Tbe judgment is therefore affirmed.

Dunbae, Hadley, Budkin, Ceow, Fullebton, and Boot, JJ., concur.