18 Wash. 359 | Wash. | 1897
The opinion of the court was delivered by
Tbe appeal in this case is from a judgment and order of distribution, and.appellant seeks the review of various intermediate orders made in tbe course of tbe assignment proceedings. A motion to dismiss has been made upon various grounds. Tbe first is that it does not appear from tbe record that the notice of appeal, which was oral, was given at tbe time tbe judgment or order was rendered or made. Tbe notice as shown by tbe journal entry is as follows:
“H. G. Thompson by bis counsel, Johnson Mckeus, Esq., gives notice of appeal in open court from tbe final judgment and order tbis day made in tbe above entitled cause, and also gives notice that be will appeal from tbe order entered Eebruary 24th,” etc.
It appears from tbe record that tbe judgment was entered on that day, and, it further appearing that tbe notice was given in open court, it must be presumed that it was given at tbe time tbe judgment was rendered. It can not be presumed that tbe court would have permitted tbe entry of tbe notice at' any other time, or that tbe clerk entered, tbe notice without tbe direction of tbe court. Tbe second ground of
It is further urged that there is no longer any controversy between the parties. It appears from the record that the distribution ordered has in fact been made. This of itself, we think, affords no sufficient reason for dismissing the appeal. The appellant preserved proper exceptions to the ladings complained of, and perfected an appeal within the time allowed by law by giving notice and bond for costs, and the giving of a bond to stay the judgment and order was not a condition upon which his right to appeal depended. It is also urged that by accepting a sum which was by the order appealed from directed to be paid to the appellant, the appellant thereby waived 'a right to appeal. Disposing of a similar question in Hinchman v. Point Defiance Ry. Co., 14 Wash. 349 (44 Pac. 867), we said:
“. . . it is apparent that the appellant is entitled in any event to all that he received, no matter what disposition is made of the case.”
The ruling in that case is decisive of the question raised here, and upon the authority of it this branch of respondents’ motion must be denied.
Lastly, it is urged that the appeal herein is not from any order which was prejudicial to the appellant. It is urged that the language of the notice, viz., “that he will appeal from the order entered February 24, 1897, fixing the amount to be paid the attorneys and other costs in the proceeding,” does not constitute a good notice of appeal, and that “ to take an appeal ” a party must give notice that he does, not that he will, appeal. It is manifest that by the
On the 28th of December, 1895, IL H. Day, a jeweler doing business in the city of Tacoma, was indebted to different persons in amounts aggregating $13,000. On that day he executed three chattel mortgages on “ all of his goods, wares, merchandise and fixtures,” for the purpose of securing certain creditors therein named. The first mortgage was given to E. D. Day to secure an indebtedness of $2,965.83, the second to Emma L. Day to secure an indebtedness of $982, and the third to O. G. Alvord to secure an indebtedness of $2,470.89. Two days thereafter the mortgagor made a general assignment of all his property, including that covered by the mortgages, for the benefit of all of his creditors, and in the instrument of assignment nominated J. W. Oloes as assignee. The property embraced within the assignment, not covered by these mortgages, consisted of an equity in lands and certain accounts and choses in action. The assignee named in the instrument qualified and thereafter at a creditors’ meeting the respondent E. B. Sines was elected assignee in his stead. The
It is the contention of the appellant that these allowances and expenses were not entitled to be paid in preference to her mortgage claim. It is urged that if the property had been delivered to appellant when demand was made by her upon the assignee, the cost of storage would not have been to exceed $20, and there would have been no attorney’s fees or assignee’s fees of any consequence, and that as appellant had nothing to do with starting the litigation she should not be required to pay for it. It is also insisted that the contractual right to take possession and foreclose contained in the mortgage authorized the appellant to proceed without any reference to the assignment, and that, unless a mortgagee under such circumstances is entitled to possession and to foreclose without regard to the assignment, the obligation of the contract is impaired. The principles involved in these various contentions have frequently received the attention of this court. Traders Bank v. Van Wagenen, 2 Wash. 173 (26 Pac. 253); Hamilton-Brown Shoe Co. v. Adams, 5 Wash. 333 (32 Pac. 92); Sabin v. Adams, 5 Wash. 768 (32 Pac. 793); Mansfield v. Bank, 5 Wash. 665 (32 Pac. 789); Cosh-Murray Co. v. Bothell, 10 Wash.
In Sabin v. Adams, supra, we said:
“ The sooner it is understood that when an estate is assigned it is in the possession of the court for orderly pro rata distribution, and that no one can interfere with it except at his peril, the sooner creditors will be able to realize fair dividends, and the objections to the law of assignments will disappear.”
The result of the reasoning of all these cases is that, under our statute, when an assignment is made, the property of .the assignor passes into the possession of the assignee as an officer of the court and is brought at once within the jurisdiction of the court, which is invested with full power to direct and control the disposition to be made of the property; and the distribution of the assignor’s estate among his creditors when unaccompanied by fraud, etc., works a discharge of the assignor from further liability. In Cosh-Murray Co. v. Bothell, supra, we held that:
“When an assignment for the benefit of creditors has been made by a debtor, a creditor cannot, during the pend-ency of the insolvency proceeding, maintain another form of action against the assigning debtor.”
There is a wide distinction between an assignment under our statute, and a common law assignment or the statutory assignment provided for under various state laws, where the assignor remains liable for the debts unpaid, and the creditor may, notwithstanding the assignment, maintain an action on the original claim. Limbocker v. Higinbotham, 52 Kan. 696 (35 Pac. 783); Lawrence v. McVeagh, 106 Ind. 210 (6 N. E. 327); Coburn v. Boston, etc., Mfg. Co., 10 Gray, 243.
In this state an insolvency proceeding is equitable in its character. The object of it is two-fold, viz., to distribute the assets of the insolvent among his creditors, and to dis
In the present case, in consequence of a failure to realize anything of a substantial character from the proceeds of the estate not mortgaged, the entire expense was charged to the fund derived from the sale of the mortgaged property. This works a hardship upon appellant.
The returns from the sale of the assets were- disappointing to all concerned. It seems to have been expected that the sum realized would equal or exceed $10,000. Even appellant seems to have shared in this expectation, as her answer to the petition of the creditors alleged that the assets were fairly worth $11,800. The actual gross receipts, however, were less than $5,000, and it is not contended that this resulted from any mismanagement on the part of the assignee.
"We think that, in a case where it appears that the assets of an assignor are so encumbered by mortgages and liens that nothing substantial will remain for the general creditors, a creditor who assails the validity of such mortgages or liens should be required by the court to make provision for the payment of the costs of such litigation and the expenses incurred by the delay which it occasions, in the
But, while we think tbe court did not err in refusing to direct tbe assignee to turn tbe mortgaged property over to appellant, we think it was error to direct that tbe costs incurred in tbe supreme and superior courts be paid from tbe mortgaged property in preference to appellant’s claim. These costs should bave been borne by tbe creditors who saw fit to assail tbe validity of tbe mortgage. Having-failed tO' maintain their claims they can not be permitted to bave tbe costs of their unsuccessful litigation paid from tbe mortgaged property in preference to tbe claim secured by tbe mortgage.
It follows from what has been stated that tbe assignee was entitled to compensation for bis services, and tbe amount allowed him was not unreasonable. It also follows that bis counsel were entitled to reasonable compensation, and tbe allowance made to them was little enough.
So much of tbe order appealed from as directed tbe payment of tbe costs incurred in tbe supreme and superior courts—in tbe proceedings which involved tbe validity of tbe mortgages—in preference to appellant’s claim, is reversed. In all other respects tbe several orders are affirmed, and tbe cause remanded for further proceedings in accordance with this opinion. Neither party will recover costs upon this appeal.
Scott, O. J., and Anders and Keavis, JJ., concur.
Dunbar, J., concurs in tbe result.