Meier v. Fidelity National Bank

86 P. 574, 43 Wash. 324, 1906 Wash. LEXIS 699

• Court: Washington Supreme Court
• Decided: July 31, 1906
• Docket: No. 6239
• Status: Published

Opinion

Root, J.

This appeal is from a judgment entered in favor of the respondent against appellant, dismissing the action upon appellant’s failure to plead further, after the court had sustained a demurrer to the amended complaint. The material facts appearing in the complaint were about as follows: The Sprague General Supply Company, on February 13, 1904, recovered a judgment against one A. F. Farver for $774.92, upon which execution ran, certain property was sold, and the proceeds applied, leaving a balance of $331.36 unsatisfied. Payment of said balance was demanded of Farver, who refused to pay. Thereupon proceedings supplemental to execution were instituted under Pierce’s Code, § 908, and an- injunction was issued against said Farver and against this respondent and another bank, enjoining them from “disposing of any of the property 'of said A. F. Farver, whether in the form of bank draft, moneys, or any other property, until further order of the court herein.” Respondent was not made a party to said proceeding, and said injunction was issued without any notice to it, and without the execution of any bond. Said injunction was served on Farver at six o’clock in the evening of May 17, 1905, and on respondent at the opening of its bank at ten o’clock a. m. May 18, 1905.

Farver had left with the sheriff of Whitman county the sum of $500 as security for his appearance upon a criminal charge. Upon being released, the balance of $420.55, in the form of a draft on the Traders Fational Bank, addressed to said Farver, was sent to-Spokane, arriving there at about 7:30 pi m. May 17, 1905, after the restraining order had been served upon Farver. Said draft was- indorsed by Farver and delivered to respondent, and the latter received and retained the proceeds, thereof. Upon the examination of Farver in said supplemental proceedings-, the fact- was developed that he had concealed a portion of his assets, to- wit, the sum of $420.55, and a receiver was appointed and was duly qualified at the time of bringing this action, which is for damages against respondent because of the alleged diversion of the proceeds of said draft.

Respondent contends that, inasmuch as it was not made a party to the proceedings between the Sprague Company and Harver, and had no notice of the application for the injunction, and no emergency being shown in the complaint or affi- • davit, or otherwise, for the issuance of the injunction without a notice, and no return day being named in the injunctive order, and no bond being given, said injunctive order was absolutely void. Under the statutes and former decisions of this court, wei think the contention must be upheld. Pierce’s Code, §§ 477, 490, 900-904; Bal. Code, §§ 5432, 5435 (P. O. §§ 484, 487); Larsen v. Winder, 14 Wash. 109, 44 Pac. 123, 53 Am. St. 864; In re Groen, 22 Wash. 53, 60 Pac. 123; Keeler v. White, 10 Wash. 420, 38 Pac. 1134; Cherry v. Western Washington Ind. etc. Co., 11 Wash. 486, 40 Pac. 136; Swope v. Seattle, 35 Wash. 69, 76 Pac. 517; 10 Ency. Plead. & Prac., 920; 21 Ency. Plead. & Prac., 1014, 1037, 1041; 12 Cyc. 48; Barr v. Voorhees, 55 N. J. Eq. 561, 37 Atl. 134; Davenport v. Kelly, 42 N. Y. 193; Jessup v. Carnegie, 80 N. Y. 441, 36 Am. Rep. 643; Hexter v. Clifford, 5 Colo. 168; Andover etc. Corporation v. Gould, 6 Mass. 40, 4 Am. Dec. 80; James v. Atlantic Delaine Co., Fed. Cas. No. 7,179; Storm v. Waddell, 2 Sandf. Ch. 494, 514; Lansing v. Easton, 7 Paige Ch. 364; First Nat. Bank v. Gage, 93 Ill. 172; In re Pitts, 9 Fed. 542.

The judgment of the superior court is therefore affirmed.

Mount, C. J., Dunbab, Cbow, Hadley, Fullerton, and Rudkin, JJ., concur.