102 Wash. 574 | Wash. | 1918
The relator, as trustee in bankruptcy of the Tacoma Ornamental Iron Works, brought an action against the Western Hardware & Metal Company to recover assets of the bankrupt which it was alleged had been preferentially transferred to the defendant in violation of the bankruptcy act. An appeal was taken from a judgment for the defendant, on which appeal the lower court was reversed and the cause remanded for a new trial. Simpson v. Western Hardware & Metal Co., 97 Wash. 626, 167 Pac. 113. On the appeal, the plaintiff recovered costs in the sum of $160.65.
After the judgment of this court had become final, the plaintiff sued out a writ of garnishment against
“It is hereby ordered that the matter of the motion of the plaintiff for judgment against the garnishee defendant, and the matter of the motion of the plaintiff to require the garnishee defendant to pay into court the sum due plaintiff upon the judgment against the defendant herein be and the same is hereby held in abeyance until the final determination of this action up*576 on the proposed appeal to the supreme court of the United States. ’ ’
The present proceeding is an application made to this court for a review of the order so entered. The petition for the writ, among other things, set forth the following allegations:
“(8) That the matters and things set forth in the affirmative defense of the garnishee defendant as disclosed by said answer are outside of and beyond the matters which can be litigated by the garnishee defendant in said proceeding, and if in law said matters could be litigated in said proceeding, the facts therein alleged constitute no defense'in said proceeding and are such that no issue can be made thereon.
“ (9) That the entry of said order by the defendant is in excess of the jurisdiction of the defendant and is erroneous and void, in this:
“(a) That the said judgment of this court is final and conclusive upon all the parties thereto, and that the defendant is without power to interfere with the collection thereof.
“(b) That the said defendant is without power to hold the collection of said judgment in abeyance.
“(c) That the said defendant is without power to suspend the rights of this affiant for an indefinite period upon problematical and uncertain contingencies.
“(d) That the said defendant is without power to refuse for an indefinite and uncertain time to act upon the motion of affiant.”
The respondent in the writ demurs to the petition upon the ground, among others, that this court has no jurisdiction to award the relief asked. Construing Eem. Code, § 1744, declaring the prevailing party entitled to costs, we have held that a litigant who secures a reversal on appeal is entitled to his-costs in the supreme court, irrespective of the ultimate result of subsequent retrials. See Briglio v. Holt & Jeffrey, 91 Wash. 644, 158 Pac. 347; Klock Produce Co. v. Diamond Ice etc. Co., 98 Wash. 676, 168 Pac. 476. This
Tbe writ is denied.
Parker, Mount, and Mackintosh, JJ., concur.