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fendant N. C. Richards, administrator of Da. vid C. Humphreys, deceased (47 Pac. 19), and respondent moves to modify the judgment entered below on such affirmance. Denied.

Richard Saxe Jones, for appellant. Bogle & Richardson and A. R. Titlow, for respondent.

appears that certain of the laborers aforesaid served a notice, under section 3124, volume 1, of the Code, of their claims for labor performed, within 60 days prior to said garnishment, and one of the points the appellants seek to raise is that this statute will not allow the payment of such claims in cases of garnishment, as it cannot be considered a writ of a similar nature to an execution or an attachment. A number of the respondents appear here by one firm of attorneys, and certain of them by other attorneys, and they have filed separate briefs. One of them contends that this point is not raised by the record, and, furthermore, that while the court found that such a notice had been served, it nowhere directed the payment of any of the proceeds to such laborers. However this may be, we regard the point as immaterial, so far as these appellants are concerned, and none of the laborers have appealed. For, if it were conceded that none of the laborers could proceed under the statute in question to enforce their claims by such notice, it yet appears that there is not enough left of the proceeds to pay the lien claims of the other laborers. So the appellants could get nothing in any event, and, of course, the appellants are not interested as to whether the money is distributed among the greater or lesser number of the employés of Kirby, Hightower & Co. Affirmed.


(16 Wash. 676) TITLOW v. CASCADE OATMEAL CO. et al. (Supreme Court of Washington. April 2, 1897.) APPEAL AND ERROR -- CORRECTING JUDGMENT BE

LOW-LIABILITY ON APPEAL Bost. 1. The supreme court has power to recall a remittitur and conform the judgment entered thereon with the opinion rendered on the appeal.

2. It is not necessary to have the remittitur recalled before moving to correct the judgment entered thereon, such motion being, in effect, one to recall the remittitur.

3. The statute providing that on affirmance the supreme court shall render judgment against appellant and his sureties for the amount of the judgment appealed from, in case the appeal bond was conditioned so as to support such judgment, applies to only so much of the judgment appealed from as was rendered against appellant below; and therefore on aflirmance of a judgment of foreclosure on appeal by an assignee of the mortgage, whose assignment

set aside as in fraud of plaintiff, but against whom no money judgment was rendered, judgment should not be rendered against such assignee and his sureties for the amount of the money judgment against the mortgagor.

Appeal from superior court, Pierce county; John P. Stallcup, Judge.

Action by A. R. Titlow, as receiver of the Tacoma Trust & Savings Bank and of the Bank of Tacoma, against the Cascade Oatmeal ('ompany and others. A judgment for plaintiff was affirmed on an appeal by de

DUNBAR, J. The Bank of Tacoma and the Tacoma Trust & Savings Bank held a note for $18,500 against the Cascade Oatmeal Company, secured by a mortgage upon certain real estate. Prior to the failure of the Bank of Tacoma, they transferred and as. signed this note and mortgage to appellant, N. C. Richards, as administrator of the estate of one Humphreys, in payment of an alleged indebtedness of the bank to him. The respondent, Titlow, as receiver of the bank, instituted this action; alleging fraud in the assignment and transfer of the note and mortgage, and praying that it be set aside, that his right to the note and mort. gage, as receiver, be established, and for a decree of foreclosure. After answer by Richards, and a trial on the issues made by said answer, the trial court decreed in accordance with the prayer of the complaint, and gave the respondent judgment against the Cascade Oatmeal Company for the amount of the balance due on the note, and decreed foreclosure in the usual form. From a portion of this decree, Richards appealed. The judgment of the lower court was affirmed by this court on appeal (47 Pac. 19), and judgment was entered in favor of the respondent, Titlow, and against Richards and his sureties for the costs of the appeal. The respondent now seeks by this motion to have the judgment modified to the extent that judgment be entered against the appellant, Richards, and his sureties, for the full amount of the judgment affirmed. An objection to this motion is made by the appellant, to the effect that this court has lost jurisdiction of the cause and of the judgment, by reason of the remittitur having been transmitted to and filed in the superior court. We think this objection is untenable. The appellate court has inherent power to correct its judgments during the terms in which the judgments were entered. The respondent, under our practice, has no notice of what the judgment is until it is remitted. The presumption must be that the judgment is entered in accordance with the opinion of the court, and it would be a hard and unjust rule to announce that, if by inadvertence or mistake the judgment should be entered not in conformity with the opinion, the respondent would have no redress. We think that in all jurisdietions, under a practice similar to ours, the court has power to recall the remittitur anak enforce the judgment according to the opinion rendered in the case. The other objeca tion is still more technical, viz. that in any event the remittitur must be recalled before


A motion is made to correct the judgment; | peal. But his appeal is substantially from for, in effect, the motion to correct the judg. the judgment of the court that the note and ment is a motion to recall the remittitur. mortgage were fraudulently transferred to

On the merits, however, we think the mo- him by the other defendant. Incidentally, tion must be denied. A bond is given on the to preserve his rights, it was necessary for theory of compensation in damages, and not him to appeal from all that portion of the on the theory of an arbitrary payment of judgment which directed a sale of the mortthe amount of the bond in case of affirmation gaged premises and the application of the of the judgment. The appellate court deter- moneys arising from such sale. So that this mines the damages, and, of course, when the case does not fall within the provision of appeal is from a money judgment, the dam- the statute which provides for the affirmance ages might be said to be liquidated; and, in of the judgment, because the statute procase the judgment is affirmed in whole, there vides that the judgment shall be entered is nothing left to be determined by the appel- against the sureties in the appeal bond for late court, so far as the amount of damages the amount of the judgment appealed from, is concerned. But it frequently happens in case the bond was conditioned so as to that judgments for money are affirmed only support such judgment. This bond is plainin part, and the sureties in that case, of ly not so conditioned, because, as we have course, are called upon to respond only to the before said, the judgment for the deficiency amount of the judgment affirmed. The re- was not appealed from. This is not inconspondent bases bis right to the modification sistent with what was decided in State v. of this judgment upon State v. Superior Superior Court of King Co., supra, for the Court of King Co., 14 Wash. 365, 44 Pac. 859, reason that the statutory bond might be and upon the statute construed in that case, necessary to reimburse the respondent for which provides that, "upon the affirmance his damages. There is no doubt that the reof the judgment on appeal for the payment spondent would have an action on his bond of money, the supreme court shall render for any damages which he sustained by reajudgment against both the appellant and his son of the delay caused by the appeal and sureties in the appeal bond for the amount the stay of proceedings, and while ordinarily, of the judgment appealed from (in case the perhaps, a smaller bond would be adequate, bond was conditioned so as to support such many contingencies might arise, such as the judgment), and for the damages and costs depreciation of the mortgaged premises, the awarded on the appeal.” It is true that in destruction by fire or flood or other elements, that case it was held that a judgment of which would render them comparatively val. foreclosure was a judgment for the paymentueless; and in such case, doubtless, a bond of money, and that the bond must be execut- of the same amount might be necessary, as ed in double the amount of the judgment, in a direct appeal from a money judgment and that the court had no authority to fix by the party against whom the judgment the amount of such bond. But the real ques- was rendered, The motion will be denied. tion involved in this case was not involved in that one. All that was decided there was SCOTT, C. J., and ANDERS and REAVIS, that in such a case the statutory bond, viz. JJ., concur. GORDON, J., concurs in the rea bond in double the amount of the judg- sult. ment, must be executed in order to stay the execution. But it was not decided that, up

(16 Wash. 681) on the affirmance of the judgment, the re

BIDDLE PURCHASING CO. PORT spondent, in case he succeeded, should have

TOWNSEND STEEL WIRE & NAIL judgment against the sureties and the appel

Co, et al. (GRACE et al., Interveners), ' lant for the full amount of the judgment affirined. That case was an application to this

(Supreme Court of Washington. April 3, 1897.) court to compel the court to fix the amount


ERENCES-MORTGAGES-PLEADINGof the bond, and it went no further than

AMENDMENT. that. It is true that a strict construction of

1. In an action to foreclose a mortgage given the statute might support the respondent's by a corporation, and to wind up the corporacontention. But it seems to us that it would tion as insolvent, a defendant creditor, by cross be too narrow a construction to hold that a

complaint, attacked the deed, and also other

mortgages to co-defendants, as in fraud of credparty who desired to appeal from any por

itors. Other creditors intervened, and joined tion of the judgment must be held respon- with said defendant in the attack. A receiver sible on his bond for the full amount of the was appointed, and after trial and decision, but

before filing of findings of fact and conclusions judgment rendered in the court below, for

of law, a defendant mortgagee was substituted which he was in no way responsible before for the defendant creditor. Held, that interthe appeal vas taken. To be sure, the ap

veners were not prejudiced through being de pellant stays the proceedings, but it may be

nied leave to amend their complaint so as to set

forth the matters pleaded by the defendant necessary for him to do that to preserve the

creditor in its cross complaint, since all credfruits of his appeal, should he succeed. The itors, including the mortgagees, wouli have to money judgment in this case was not ren

file their claims with the receiver, and, if the

receiver failed to contest a claim in a proper dered against appellant, Richards, and from

case, any creditor who had proved his claim that portion of the judgment he does not ap- might do so.

» Rehearing denied,

2. In view of Code Proc. § 326, subd. 5, au- Wire & Nail Company for $4,985.60 and thorizing the appointment of receivers for cor

costs, recovered in the superior court of Jefporations which are insolvent or are in imminent danger of insolvency, and of the fact that

ferson county November 10, 1894, upon a the property of an insolvent corporation is a debt existing prior to July 1, 1894, and exetrust fund for its creditors, an insolvent corpo- cution thereon returned wholly unsatisfied. ration cannot make a voluntary preference.

This answer and cross complaint attacked 3. A mortgage given by an insolvent corporation to secure an antecedent loan was not saved all of the alleged mortgages as follows: "(a) from invalidity as a preference by the fact that As to plaintiff's mortgage, it alleged that on at the time the loan was made an unenforce

or about July 18, 1894, the Port Townsend able understanding existed between the corpo

Steel Wire & Nail Company executed and deration and the lender, that, if the loan was not speedily repaid, the corporation should secure livered to plaintiff its note, payable 90 days it by mortgage.

after date, for $5,000, and pledged 100 shares

of the capital stock of the First National Appeal from superior court, Jefferson county; W. H. Pritchard, Judge.

Bank of Athena, Oregon, of the par value Action by the Biddle Purchasing Company,

of $10,000, for the payment thereof, which substituted in the place of Cyrus F. Clapp,

stock plaintiff retains; that afterwards, and

on or about September 29, 1894, said Port against the Port Townsend Steel Wire &

Townsend Steel Wire & Nail Company exeNail Company, James K. Lynch, substituted

cuted the note sued on by plaintiff in lieu of in the place of the First National Bank of

said first note; that no consideration was Athena, and L, D. Lively, as trustee and in

paid by plaintiff for said notes to the Port dividually, the First National Bank of Athe

Townsend Steel Wire & Nail Company, but na, substituted in place of the First National

the consideration, if any, was paid to one Bank of Port Townsend, and James M. Live

James M. Lively, who was the owner of said ly. J. W. Grace & Co. intervened. From the

pledged stock. (b) That each of the three judgment rendered, interveners and certain

alleged mortgages was executed by James defendants appeal. Reversed.

M. Lively, president, and A. R. McLaughlin, Morris B. Sachs, P. Tillinghast, Trumbull secretary, of the Port Townsend Steel Wire & Trumbull, and Crowley & Grosscup, for

& Nail Company, without authority from appellants. S. A. Plumley, R. W. Jennings,

said corporation to execute either said mortand A. W. Buddress, for respondent.

gages or the notes which they purported to

secure. (c) That each of said notes and REAVIS, J. A suit was commenced by mortgages was without consideration, and Cyrus F. Clapp, assignor of the Biddle Pur- was executed and filed for record to hinder, chasing Company, against the Port Town- delay, and defraud the creditors of the Port send Steel Wire & Nail Company, a corpora- Townsend Steel Wire & Nail Company. (d) tion, to foreclose a mortgage to secure a de- That the property conveyed by said mortmand note for $5,000; both the note and gages on the 29th day of September, 1894, mortgage having been executed on the 29th and for a long time theretofore, comprised of September, 1894. Plaintiff also made the all of the property of the Port Townsend First National Bank of Athena, Or.; L. D. Steel Wire & Nail Company, ard was not of Lively, trustee of the same bank; L. D. Live- value exceeding $20,000. (e) That the Port ly, personally; and the First National Bank Townsend Steel Wire & Nail Company on of Port Townsend,-defendants, because of September 29, 1894, and for a long time liens claimed by the defendants upon the theretofore, was, and now is, indebted to property included in plaintiff's mortgage. divers persons, not including the said alleged The following pleadings were filed in the mortgagees, in sums aggregating more than (ause: Answer and cross complaint of the $25,000. (f) That the Port Townsend Steel First National Bank of Athena and L. D. Wire & Nail Company was on September 29, Lively, trustee for the same, alleging the 1894, being pushed for said indebtedness, execution and delivery of three demand was unable to pay same, was unable to opernotes, dated September 29, 1894, for $5,000, ate its plant and carry on its business, for $4,977, and $4,975, respectively, by the Port want of funds, and was insolvent. (g) That Townsend Steel Wire & Nail Company; and each of said mortgages was voluntary, and a mortgage of the same date, to secure the was given when said corporation was insoltlıree notes, upon the same property included vent, and was given, and intended to be in its mortgage,-with a prayer for foreclo- given, as a preference to the mortgagee. sure. Answer and cross complaint of L. D. Prayer: (1) That plaintiff's debt be adjudged Lively, alleging execution and delivery of the debt of James M. Lively, and that the demand note dated September 29, 1894, for pledged stock be applied thereon; (2) that $7,605.54, by the Port Townsend Steel Wire the mortgages be held void; (3) that the & Nail Company; and of a mortgage of the Port Townsend Steel Wire & Nail Company same date, to secure the note, upon the same be adjudged an insolvent corporation, and property included in plaintiff's mortgage,- that a receiver be appointed to wind up its with a prayer for foreclosure. Answer and affairs for the benefit of all creditors and cross complaint of the First National Bank stockholders." Answer and cross complaint of Port Townsend, alleging a judgment in of J. W. Grace & Co., by intervention, alits favor against the Port Townsend Steel | leging recovery of a judgment against the

Port. Townsend Steel Wire & Nail Company of business was probable, though it does not and J. M. Lively in the superior court of appear from the evidence what the value of. Jefferson county, April 6, 1895, for $9,509.63, the company's property was,-whether more and costs, and on the same date a second or less than its liabilities. The giving of the judgment against the same defendants for mortgage to plaintiff was not intended by $107.36; that the judgments are liens upon the company's officers as a preference to the mortgaged property of the Port Town- plaintiff, but simply as a compliance with send Steel Wire & Nail Company, included the agreement made at the time of the loan." in the mortgage from plaintiff. Adinits the That portion of the above finding in which allegations of the cross complaint of the it is stated that "it was agreed between First National Bank of Port Townsend, and plaintiff and the Port Townsend Steel Wire joins in the same prayer for relief as in the & Nail Company, at the time of said loan, cross complaint. Other pleadings by way that said company should execute and deliv. of reply were filed, but the issues were those er to plaintiff a mortgage upon its plant and raised upon the cross complaint of the First property at Port Townsend as security to National Bank of Port Townsend and the said loan," and, further, “that the mortgage intervention of Grace & Co.

described in the former finding of fact was 1. A trial was had in the court, and testi- executed on September 29, 1894, in fulfillmony taken, and thereupon the court filed ment of and in compliance with said agree30 findings of fact. The findings which are ment made at the time when plaintiff loaned deemed material to the decision of the cause said money," is not supported by the testihere are few. The thirteenth is as follows: mony in the cause. The plaintiff testified: "That the origin of the debt from the de- "I was in San Francisco on the 1st of July. fendant the Port Townsend Steel Wire & I met Mr. Lively, and he approached me on Nail Company to the plaintiff, for which the subject of a loan for the purpose of buythe promissory note described in the preced- ing wire to make nails for a contract which ing finding of fact was executed, was as he had with a hardware house in San Franfollows: On or about July 18, 1894, the cisco. Q. What year was this? A. In 1894. plaintiff loaned said Port Townsend Steel He had a contract for $5,000 worth of nails, Wire & Nail Company the sum of $4,700 in and he assured me that he would not require money, and received from said company its this money for a longer period of time than promissory note for $5,000, payable to plain- ninety days, and that the money he would tiff's order ninety days after date, without receive for these nails would be paid to me. interest until after maturity, and at the I partially promised him, and when I came same time plaintiff received from J. M. home he came to Seattle, and I met him Lively, as collateral security to said note, there. He wanted to get the money, and I certain certificates of stock in the First Na- promised to let him have it; and he was tional Bank of Colton, Washington; but the to give me security which would be satisvalue of said stock, or whose property the factory, and he was also to have the premsame was, does not appear from the evi- ises insured in my favor. He didn't get dence. It was agreed between plaintiff and the policies then, claiming that he was getthe Port Townsend Steel Wire & Nail Com- ting his insurance from the East, where he pany, at the time of said loan, that said could get a cheap rate; and, instead of givcompany should execute and deliver to ing me the mortgage, he gave me forty-four plaintiff a mortgage upon its plant and prop- hundred dollars' worth of stock in this Bank erty at Port Townsend as security to said of Athena, Oregon, and fifteen hundred dol. loan; and at said time neither plaintiff nor lars' worth in the First National Bank of the company contemplated the company's Colton, Washington. I objected, but he insolvency, but, on the contrary, said corpo- said the other would be forthcoming, and I ration was regularly carrying on its busi- gave him a portion of the money at that ness, and its officers expected it to continue time. Q. What date? A. That was July its business and pay all of its debts. That 19th. I have my check in my book- Q. the mortgage described in the former find- How much did you give him at that time? ing of fact was executed on September 29, A. He was to pay me three hundred dollars, 1894, in fulfillment of and in compliance and I gave him twenty-seven hundred dolwith said agreement made at the time when lars, making three thousand- Q. Did you plaintiff loaned said money, and that plain- get the note of the corporation at that time? tiff still did not know that the corporation A. Yes; I got the note for ninety days. Q. was insolvent, or that it contemplated a ces- And the note of the corporation for five sation of its business, and that said mort- thousand dollars ? A. Yes; I gave him a gage was received by him in good faith, receipt for the balance until he produced the and without any intent to hinder or delay insurance policies. On the 12th of August any other creditor; but at said time the he returned my receipt, with the request officers of the said Port Townsend Steel that I pay the same, as he was hard up. Q. Wire & Nail Company realized that the said And that payment you made then, together corporation was unable to pay its debts, and, with the payment before that, was that $2,although still carrying on its regular busi- 700? A. Yes, sir. Q. What note did you ness, said officers foresaw that a suspension receive at that time? Whose note was it? A. The original note." He was asked, “Did reason of its not being able to pay its debts you, or did you not, receive the mortgage in- at maturity, and by reason of its not having troduced in evidence, at the time the note the money necessary to pay its laborers necwas executed ?" and answered: "No, sir; he essary for the operation of its plant, nor to was to give me that mortgage, but didn't buy material for said purpose; that on said execute it at that time, but assured me that 29th day of September, 1894, and for some it would be if he would not pay me by a time prior thereto, it had been unable to certain time, he was to give me this secur- operate its works and plant, and they were ity. I got a telegram from my attorney in idle. (27) That on the 29th day of SeptemPort Townsend early in the morning, -about ber, 1894, and for a long time prior thereto, 9 o'clock,-and he gave me to understand the said defendant the Port Townsend Steel that my five thousand dollars was in dan- Wire & Nail Company was, and ever since ger. I came down to Port Townsend, and has been, unable to pay its debts in the orwas given to understand that they were dinary or usual course of trade, and on said about to give mortgages to other persons. date was, and ever since has been, and is I went out to the nail works,-my attor- now, insolvent. (28) That on the 29th day ney went with me,-and I got the first mort- of September, 1894, James J. Lively, the gage. I surrendered the old note at the president of the said defendant corporation, time. Q. Then you didn't get this mort- the Port Townsend Steel Wire & Nail Comgage until the 29th day of September, 1894? pany, and A. R. McLaughlin, its secretary, A. I believe; yes." Mír. J. V. Lively, presi- and all of the other officers of said comdent of the Port Townsend Steel Wire & pany, knew that the said corporation was inNail Company, testified as follows: "Q. Now, solvent, and that it was necessary to wind please state to the court what arrangement up its affairs, and knew these facts at the you made with Mr. Clapp with reference to time they executed and delivered to said L. the security that he would receive from the D. Lively, trustee, and L. D. Lively, the mortcompany for that loan. A. Mr. Clapp didn't gages set forth hereinbefore; and that said want to make a long loan at that time, and mortgages were given by the officers of the we made arrangements to make a short said corporation to L. D. Lively, and L. D. loan. If it was for a period of as long as 60 | Lively as trustee, for the purpose of preferor 90 days,-I forget the exact time,-we ring them over the other creditors of the were to secure him; but, if we could pay said corporation, and for the purpose of hinhim back in a few days, it would not be Cering and delaying the creditors of the said necessary to give security. But, if we could corporation in the collection of their debts." not do this, we would have to give him a The court had also, prior to the trial, apmortgage on the entire plant." There is no pointed a receiver, who had taken possesagreement shown here, which could be en- sion of all the property of the Port Townforced, for the execution of a mortgage by send Steel Wire & Nail Company. At the the defendant corporation to the plaintiff. trial the testimony tending to show the inIt was merely understood that, if the loan solvency of the corporation on the 29th of made by the plaintiff to the defendant cor- September, 1894, and prior thereto, was inporation was not speedily paid, it should be troduced by the defendant the First National secured. But the understanding was in no Bank of Port Townsend. Objection was view sufficiently definite or certain to consti- made to the introduction of testimony on the tute a mortgage. With this error, noted in part of the interveners, Grace & Co. The a portion of the thirteenth finding, illso falls court announced orally that it was disposed the eleventh finding of fact, or, rather, legal to sustain this objection, but appears to conclusion, which is follows: "That have made no clear ruling upon the question. whatever interest in or lien upon said mort- Subsequent to the trial, and before the findgaged premises any of the defendants here- ings of fact and conclusions of law were in have is subsequent to and subject to the filed, the Biddle Purchasing Company was mortgage of plaintiff described in the fore- substituted as party in the action in place of going finding of fact, which said mortgage Cyrus F. Clapp, James K. Lynch was substito plaintiff is a first lien upon all of said tuted as defendant in place of the First Naproperty."

tional Bank of Athena, and the First NaThe twenty-third, twenty-sixth, twenty- tional Bank of Athena was substituted in seventh, and twenty-eighth findings of fact place of the defendant and cross complainare as follows: "(23) The property included ant the First National Bank of Port Townin mortgages was all of the property of any send. Thereupon Grace & Co. moved for kind belonging to the Port Townsend Steel leave to file an amended pleading, in which, Wire & Nail Company September 29, 1894, substantially, it was endeavored to set up and for a long time prior thereto." “(26) the same facts that were set forth in the anThat on the 29th day of September, 1894, swer and cross complaint originally filed by the said defendant, the Port Townsend Steel the First National Bank of Port Townsend. Wire & Nail Company, was, and for a long The court denied the motion for such amendtime prior thereto had been, seriously em- ment by Grace & Co., to which exception barrassed in the operation of its mills and was taken; and upon the pleadings in the foundry and in carrying on its business, by cause, and particularly that of Grace & Co.,


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