99 Wash. 478 | Wash. | 1918
This is a contempt proceeding, instituted by the filing of an affidavit therefor in this court on October 19, 1917, from which it substantially appears that, on September 11, 1916, the Union Machinery & Supply Company, a corporation, commenced a replevin action in the superior court for Kitsap county against defendant Paul L. Thompson to recover the possession of two donkey engines claimed as the property of the plaintiff therein, the possession of which was wrongfully withheld by the defendant; that the sheriff seized the property by virtue of the writ and undertaking of the plaintiff, and upon the failure of the defendant to execute an undertaking for its redelivery, the property was turned over to the plaintiff by the sheriff as provided by law; that the defendant’s demurrer to the complaint was sustained and judgment entered dismissing the action, from which an appeal was taken to this court; that, in furtherance of such appeal and for the purpose of preserving its
Upon the filing of the affidavit, we made an order requiring the defendants to tender to the Union Machinery & Supply Company the possession of the property where it stood, within three days after the service of such order, and that said company be permitted to remove the same from the premises as soon as convenient; or that, if defendants failed or refused to do so, to show cause before this court on November 2, 1917, or as soon thereafter as the matter could be heard, why they should not be adjudged in contempt for such failure or refusal. This order was served upon defendant Tilton on October 20, 1917, and upon defendant Thompson on October 24, 1917. The proceeding came on for hearing on oral arguments on November 2, 1917, at which time defendants were given further time in which to file affidavits in support of their return to the show cause order, which affidavits were filed on November 7, 1917.
From an examination of the showing made by the affidavits, we are convinced that neither of the defendants has complied with the order. There is no showing that any tender of the property has been made or that defendants have consented to the removal thereof by the plaintiff. Neither has any sufficient excuse been made for such failure. It was
It is therefore adjudged that the defendants, and each of them, are in contempt of this court, and a fine of $100 and the costs of this proceeding is hereby assessed against each of them. In view of the unsatisfactory condition of the record, however, the defendants may purge themselves of the contempt by serving upon the plaintiff in said replevin action a written tender of the property, together with their consent that the same may be removed from the premises by the plaintiff, and filing such writing, with proof of the service thereof, with the clerk of this court within ten days from the filing of this opinion, and by paying the costs of this proceeding.
Ellis, C. J., Fullerton, Main, and Parker, JJ., concur.