50 Wash. 642 | Wash. | 1908
This is an action for the possession of personal property, including a donkey logging engine, and certain rigging and tools in connection therewith, together with wire cable, and some other items of smaller consequence. The suit was brought by the plaintiff, Charles H. Springer, against Robert Ayer, as receiver of the effects of John H. Saunders. The • complaint alleges, that about January 5, 1907, the plaintiff made a conditional oral contract of sale ■of the property to Saunders, by the terms of which Saunders was to pay the plaintiff $2,000 on or before April 5, 1907, and it was agreed that Saunders was to acquire no title to the property until he had made full payment of the purchase price; that it was also agreed that, if he failed to make full payment within the time mentioned, he should forfeit all payments theretofore made; that he paid within the time the sum •of $500, and no more, and that by reason of the facts stated the payment has become forfeited and the plaintiff is entitled to the possession of the property; that the defendant Ayer, .as receiver of the property and effects of Saunders, took possession of the chattels mentioned, and still maintained the same at the time this action was begun. The value of the property is fixed in the complaint at $1,500, and judgment for possession or for the recovery of the value is demanded. The plaintiff having given the necessary bond, took immediate possession at the commencement of the action.
The receiver answered, admitting his possession, averring his right thereto, and denying the plaintiff’s right to possession. He alleged that in no event did the plaintiff sell to ;Saunders the twelve hundred feet of %-inch wire cable, the
The alleged creditors Ramberg and Lansdale mentioned in-the receiver’s answer applied to the court for leave to intervene in this cause, and were joined by A. H. Chambers. Leave to intervene was granted. Practically the same facts were alleged by Ramberg and Lansdale as were alleged in the receiver’s answer concerning their claims. The complaint in-intervention further alleged, in behalf of Chambers, that he-
A supplemental complaint was also filed, alleging that Saunders had been declared a bankrupt in the United States district court for the western division of the western district of Washington. The date of the adjudication in the bankruptcy court was subsequent to the appointment and qualification of the defendant Ayer .as receiver in the state court. It was shown that James McDowell was appointed and qualified as trustee in bankruptcy, and he was made a party defendant in this action. He answered, setting up the same defense as that made by the receiver, that the sale by plaintiff to Saunders became absolute as to subsequent creditors in good faith. As trustee in bankruptcy, he also demanded the possession of the property, or its value in case the return thereof cannot be had.
Issues were joined by the plaintiff upon the several answers and the complaint in intervention, and a trial was had before the court without a jury, resulting in a judgment to the following effect: That, inasmuch as the property had been delivered to the plaintiff pending the action, it was adjudged that the receiver Ayer should recover the property and its possession, and in case a return or delivery' cannot be had, then the receiver shall recover from the plaintiff $1,140, as the value of the property, together with his costs. It was also adjudged that the interveners shall recover their costs against the plaintiff, that the trustees in bankruptcy shall take nothing against the receiver, and that he shall recover his costs against the plaintiff. The plaintiff has appealed, and the interveners have also joined in a separate appeal.
Appellant Springer assigns error upon the court’s findings of facts. We think the evidence shows that Saünders, as Springer’s conditional sale vendee, was in possession of the property at the time the creditors named extended their credit to Saunders, and that the credit was in each instance extended in good faith, relying upon the belief that Saunders was the absolute owner of the property. Springer, as the conditional sale vendor, neglected to file in the auditor’s office of the county a memorandum of the sale showing its terms and conditions as provided by chapter 6, Laws of 1903, p. 6. In. accordance with that statute, the sale to Saunders therefore became absolute so far as the rights of the aforesaid subsequent creditors in good faith are concerned. The evidence shows that Saunders had forfeited his rights under the conditional sale contract before the receiver took possession, but the possession nevertheless remained with Saunders during alL the time the credit was extended, and the judgment of the court awarding the possession of the property to the receiver was upon the theory that the particular creditors mentioned by the receiver in his answer, and possibly others to whom he refers but whom he does not name, have an interest in the property as creditors of Saunders by reason of the statute cited. ' ■
We think the judgment awarding return of possession to the receiver was right, but the money judgment to be recovered in the event the property is not returned is for $1,740, while the aggregate extent of all claims entitled to the protection of the statute aforesaid which were brought to the attention of the court, is $961.45. Springer contends that in no event should the alternative money judgment be for more than the above named sum. The court, however, found, and
It is manifest from what has been said that this court cannot determine from the record now before it how much should be awarded as the money judgment. The relative rights of the parties are out of the ordinary in an action for mere possession. The receiver has no greater interest in the property conditionally sold by Springer than will be sufficient to protect the particular creditors who are favored by the statute, and Springer should therefore not be required to respond to a judgment, for a greater sum. We think the cause must therefore be remanded to the superior court for the purpose of further trial to be confined to proof of the facts indicated above as necessary to be determined in order to fix the amount
Appellant Springer suggests that, inasmuch as a trustee in bankruptcy had been appointed prior to the trial of this cause, the possession, as between the trustee and the receiver, belonged to the former. The receiver had, however, been appointed and qualified and this action was commenced before the adjudication in bankruptcy. Under such circumstances, the state court was not deprived of its jurisdiction, and the receiver continues to act notwithstanding the action of the bankruptcy court. State ex rel. Heckman v. Superior Court King County, 28 Wash. 35, 68 Pac. 170, 92 Am. St. 826. It is also claimed that the judgment awarding the trustee in bankruptcy his costs against Springer is erroneous. It is true, the trustee was brought in as a party defendant by Springer himself. The trustee did not, however, disclaim any interest in the property, but he filed an answer and claimed the right to possession as against both Springer and the receiver. He was denied the relief he asked, but was given a judgment for his costs against Springer. We think this was error, and that the judgment for costs should be reversed.
The judgment in the cause is reversed for all the reasons stated above, and the cause is remanded with instructions to enter a modified judgment after further hearing, in accordance with this opinion.
Rudkin, Mount, and Crow, JJ., concur.
Fullerton and Root, JJ., took no part.