Weisbach v. Arnold, Pollock, & Co.

13 P. 417, 3 Wash. Terr. 111, 1887 Wash. Terr. LEXIS 10

• Court: Washington Territory
• Decided: January 29, 1887
• Status: Published

Opinion

Mr. Justice Langford

delivered the opinion of the court.

In the District Court there was an action entitled Arnold, Pollock, & Co. v. R. Jacob Weisbach. In that case judgment was entered against the defendant. No appeal has been taken from that judgment, and that defendant does not appear to have any interest in the case before us. The adverse parties in the case before us appear to be Joseph Klee, Peter O'Riley, and Frederick Nachtstein, appellants, v. Arnold, Pollock, & Co., appellees. The appeal is taken from an order (so called) that the appellants deliver certain property to the sheriff of Pierce County after they have paid themselves a certain amount. The appellants have never been parties plaintiff or defendant in any action, nor have they been impleaded therein. The order against them is made in favor of the sheriff, who has never been a party to any action. The order purports to order appellants to deliver property which they claim as their own to a third party. If the order is valid, then private property may be taken by a fiat of a judge without any due course of law. The appellants, not having been parties to any action, nor impleaded therein, and never having had their day in court, were probably taken by surprise by the order. They immediately after it was made applied for its vacation, and the appellees resisted it. From that time up to the final argument in this court, the appellant and appellees have been adversaries, yet in the midst of the contest, the appellee declares that neither of the parties are adversaries.

The principles of this case were fully discussed and decided in the case of Coombs v. Davis, 2 Wash. 466. We are satisfied with that decision, and apply it to this case. The order of the District Court is reversed and set aside.

Greene, C. J., and Turner, J., concurred.