31 Wash. 499 | Wash. | 1903
The opinion of the court was delivered by
— Action in equity to restrain the collection of a judgment at law. Plaintiff had judgment below. Defendants appeal.
The judgment appealed from restrained the levy of an execution issued upon a judgment of nonsuit in an action for replevin, wherein a judgment was rendered against respondent and in favor of the appellant Van Alstine, for the return of certain goods' or their value, $800. The facts are not disputed and are substantially as follows: On May 14-, 1898, Lou Mehaffey and Eiuma Horton were conducting a house of prostitution in the city of Seattle. On that date they purchased a bill of household goods from the Standard Furniture Company, respondent here, under a conditional bill of sale. The vendees were to pay a certain sum in cash, and monthly payments thereafter until the goods were paid for, the title of the goods to remain in the vendor until the purchase price was fully paid. At this time Lou Mehaffey was married to a man by the name of Con Van Alstine, but maintained the name of Lou Mehaffey. Her marital relations were not known to the respondent. After the goods were sold, Lou Mehaffey (Van Alstine) brought an action for divorce against her husband. He appeared in the action, and filed a cross-complaint for divorce against his wife, and prayed judgment therein against her and Emma Morton and others for a large amount of money, which he claimed was fraudulently oh
It is conceded that the appellant Van Alstine was and had been a non-resident of this state for a year prior to the time of the trial, and has no property within the jurisdiction of this court; and also that the respondent has “no other or adequate remedy at law or otherwise, for its protection against the threatened acts of the defendants, nor to secure the relief prayed for, except by this action.” The appellants here rely largly upon the fact that the immoral nature of the contract by which respondent sold the goods to Lou Mehaffey and Emma Morton deprives respondent of a remedy to relieve itself from the judgment for $800 in the action for replevin, viz., Standard Furniture Co. v. Van Alstine. Many authorities are cited to the effect that, where a contract is void as against public policy, it, will not be enforced. But these cases are not in point in this action. Respondent is not seeking to enforce that, contract Whether it was a legal or an illegal contract can make no difference here. Respondent is relying upon another contract, which is not against public policy. It is not denied that, after respondent obtained possession
It is further .claimed by appellant Yan Alstine that he has a right to the property from the fact that he was the husband of Lou Mehaffey. It admitted, however, that the only other right of appellant to the property is by virtue of the levy and sale under a judgment which was afterwai’ds reversed by this court. The statute, at § 6526, Bal. Code, provides:
“If by a decision of the supreme court the appellant be■comes entitled to a restoration of any part of the money or property that was taken from him by means of the judgment or order appealed from, either the supreme court or the court below may direct an execution or writ of restitution to issue for the purpose of restoring to the appellant his property, or the value thereof. ...”
Laying aside for the'present the fact that one of the judgment debtors in Van Alstine v. Van Alstine was the wife of appellant, it follows from the statute quoted that upon thé reversal of the judgment under which the property was sold the judgment creditor who sold and purchased the property at his own sale was bound to return
We think the judgment of the lower court should be affirmed, and it is affirmed accordingly.
Fullerton', C. J., and Hadley, Anders and Dunbar, JIT., concur.