119 Wash. 631 | Wash. | 1922
— The relator, Jessie S. Marshall, seeks by this certiorari proceeding a review and reversal of
On March 8,1922, relator commenced in the superior court for Snohomish county her suit seeking an injunction restraining the city of Everett, N. E. Butts, its building inspector, and W. A. Taro, chief of its fire department, from proceeding to 'destroy her certain wooden store building, situated, we assume for present purposes, within the fire limits of the city. A temporary restraining order was on that day issued in the action, ex parte, restraining the defendants from proceeding with their threatened destruction of the building, pending relator’s application for a temporary injunction to further restrain the destruction of the building until the whole case could be finally disposed of. The application came on regularly for hearing on March 22, 1922, when, upon the record and files, and
“ (1) The above named defendants, N. E. Butts and W. A. Taro and each of them are married and that neither of them have any property or income which is not community.
“ (2) The above named defendants, N. E. Butts and W. A. Taro and each of them are insolvent in the respective capacities in which this action is brought.”
This request was by the court refused, the court making no findings whatever upon the subject of insolvency. This disposition of the application for a temporary injunction resulted in the rendering of the temporary restraining order no longer in force. Thereupon this certiorari proceeding was commenced, and relator’s claimed rights were held in statu quo by an appropriate order of this court in connection with the issuance of the writ, which brings the order refusing the temporary injunction here for review.
The threatened destruction of the building is sought to be justified by the defendants Butts and Taro by virtue of their decision and notice given in pursuance thereof, under the provisions of an ordinance of the city of Everett reading in part as follows:
“No frame or wooden building within the Fire Limits that has become injured by wear and tear, or the action of the elements or fire shall be repaired when such injury is more than 30% of its actual value as decided by the Building Inspector and the Chief of the Fire Department, and upon notice from the Building Inspector such building shall be demolished within thirty days. . . ” (Ordinance No. 1,260, § 171.)
On the hearing of the application for a temporary injunction, a number of affidavits were read — all of the
“ J. H. Requa, being first duly sworn, upon his oath deposes and says; that I am over the age of twenty-one years and a resident of the city of Everett, Snohomish county, Washington; that the above named defendants, N. E. Butts and W. A. Taro, are each of them a married man and the head of a family; that affiant is informed and believes that neither of said defendants has any separate property or assets of any kind or nature and that the only property held or owned by either of said defendants is community property and as such not subject to execution upon judgment for tort.”
It does not seem to be seriously contended that relator does not have the right to have the order refusing a temporary injunction reviewed and corrected, if erroneous, by this certiorari proceeding; if such order is reviewable at all in this court. Indeed, we think there would be no sound ground to rest such contention upon, in view of the fact that the threatened destruction of the building will almost surely be consummated before the final disposition of the case upon the merits in the
It is argued, however, that relator does not have the right of appeal, or other review, in this court, of the order refusing a temporary injunction, because the trial court did not find that the defendants Butts and Taro were insolvent; counsel for the defendants invoking the provisions of Rem. Code, § 1716, reading in part as follows:
“Any party aggrieved may appeal to the supreme court in the mode prescribed in this title from any and every of the following determinations, and no others, made by the superior court, or a judge thereof, in any action or proceeding. ...
“ (3) From an order granting or denying a motion for a temporary injunction, heard upon notice to the adverse party, and from any order vacating or refusing to vacate a temporary injunction: Provided, that no appeal shall be allowed from any order denying a motion for a temporary injunction, or vacating a temporary injunction unless the judge of the superior court shall have found upon the hearing, that the party against whom the injunction was sought was insolvent. ’ ’
This argument, carried to its logical conclusion, would mean that a superior court’s finding of solvency, or its refusal to find insolvency, upon its refusal of a temporary injunction, is entirely beyond review or correction by this court. That a superior court’s action in that behalf is not beyond correction in this court, is, we think, settled by our decision in State ex rel. Davis
“. . . to (1) review the action of the lower court upon the ground that no appeal will lie because of the failure of the lower court to make a finding of insolvency; (2) to review the issue of insolvency; (3) order a supersedeas to issue pending the trial upon the merits. ’ ’
This court, arriving at the conclusion that relator was entitled to the relief sought, entered an order which had the effect of a temporary injunction of the superior court pending the disposition of the case upon the merits in that court.
•Did the superior court erroneously refuse to award a temporary injunction and find Butts and Taro to be insolvent, in so far as their separate property is concerned? It seems probable, though we do not now finally so decide, that whatever damage Butts and Taro might render themselves liable for by a wrongful destruction of the building as threatened by them, would be a charge only upon whatever separate property they might possess, and not a charge upon any community property they might be interested in. The question of their insolvency, we think, becomes one of relator’s ability to recover damages as against them which could be satisfied from their property subject to execution upon such a judgment. It at least being a seriously debatable question as to whether or not their community property would be rendered subject to the satisfaction of such damages, we think, for present purposes, we should regard the question of their insolvency as being one of whether or not they are insolvent having reference alone to the separate property
“As a general rule, all property in the possession of either spouse during marriage, and all property in their possession at the dissolution of the community, is presumed to be community property until the contrary is shown.”
This statement of the law seems to find support in the decisions, particularly in Fennell v. Drinkhouse, 131 Cal. 447, 63 Pac. 734, 82 Am. St. 361; and our own decisions in Stewart v. Bank of Endicott, 82 Wash. 106, 143 Pac. 458, and Plath v. Mullins, 87 Wash. 403, 151 Pac. 811, contain observations which lend support to the view that all property in the control and possession of either spouse is, in the absence of all evidence to the contrary, presumed to be community property. We concede that it is not a very strong presumption and is one that may be easily overcome; but, in the case before us, we have absolutely nothing to overcome the force of the presumption arising from the undisputed marriage of Butts and Taro that they have no separate property, and that, therefore, they are insolvent as to their separate liabilities. It seems to us that the trial judge fell into error in refusing to find that Butts and Taro were both insolvent as to their separate liabilities; and we think we are now warranted in making such finding ourselves and proceeding with the disposition of the question before us as though it had been so found by the trial court.
This brings us to the question of whether or not the
We have assumed, of course, that the city is not insolvent, and have not lost sight of the fact that it is one of the defendants in the injunction suit. It seems to us that, while that is true, the liability of the city in damages for the possible wrongful destruction of relator’s building by Butts and Taro is a seriously debatable question, and that relator should not be put to the hazard of recovering damages from the city, in view of the debatable character of its liability, any more than relator should be put to the hazard of recovering damages chargeable to the community property of Butts and Taro.
We. are, on the whole, much influenced in our disposition of this proceeding by the highly probable irreparable injury which would result to relator from the destruction of the building, if wrongfully destroyed; and also by the manifest slight injury or inconvenience which will result to the defendants if they be temporarily enjoined from destroying the building until the final disposition of the case by the superior court.
Bridges, Fullerton, Mitchell, and Tolman, JJ., concur.