, 1892-06-15
FROM KING COUNTY
Another Case Relative to Seizure
of Goods.

Herman Chaplin, appellant, VS.. D. M. Bo
kee and ]. H. McGraw, respondents.
The respondent, D. NJ. Bokee, brough
suit against one Thomas f. Robertson anC
obtained judgment for S6S6.C6. An exc
cutiOn issued thereon and was, on De
cember 5, 1889, placed in the hands of the
respondent, John H. McGraw, then sheriff
of King county, for levy. The said sheriff
by virtue of said writ, on Decem Der 6, 1880
levied on certain lumber and material.
situated in a certain lumber yard in King
county, known as the "West Seattle LHm
Der Yard" The sale OF this property un
der said levy was advertised for December
16, 1890.
On December 13, 1899, the appellant, Her
man Chaplin, filed his affidavit under chap
ter 80, of the Code of Washington, setting
forth that he was The owner and in pos.
session of said property under and by vir-
tue of bill of sale duly executed by said
Robertson on October %, 1890, the same be-
ing recorded on the same day in the audit
or's Office of King county, in the proper
record book, aad reciting the said
levy, etc., making his formal claim
to said property and the posses
sion of it, and claiming that
said sheriff had no right whatever to levy
upon said property, and with said affidaYit
appellant submitted the bond required in
such cases. On these facts this matter
went regularly before the court March 3rd
1891, for trial. A jury was waived and
the trial proceeded before the court.
Plaintiff offered the bill Of sale aforesaid in
evidence. Defendant objected to its ad-
mission on the ground that it was i'm
material, and In violation of the statutes
of this state relating to the estates of insol-
vent debtors, and because it did not include
all Of Eobertson's creditors generally. The
bill of sale, however, subject to these obiec-
tiOns, was admitted as evidence in the
- ia VO.-r, A.
no evidence, but moved for judgment.
WhereupOn the court rendered judgment
against The plaintiff in this special pro-
ceeding for the amount of the former judg-
ment with interests and costs, en- the
grounds that said bill of sale was given in
contemplation of insolvency, and, as such,
was void on its face, because it did not in
clude all the creditors of Robertson, and,
particularly, said claim of defendant
Bokee, and that it was not entitled to be
received in evidence.
The appellant took no steps to have any
statement of facts or bill of exceptions set
tied, and the case comes here certified only
by the clerk of the lower court. The re-
spOndents move to strike the bill of sale
aforesaid from the transcript on the ground
that it is no proper part thereof and could
only come here by a statement of facts or
bill of exceptions. This motion is well
taken aud must be granted. There is no
statute authorizing matters of evidence to
be brought here as this document came
and was none when this appeal was taken.
1t could form no part Of the judgment roll
or record unless included in a statement of
facts or bill of exceptions. There is no
finding of fact that such a bill of sale was
executed but it was referred to as a docu-
ment purpOrting to be a bill of sale as
aforesaid, and the court found that the OBJ
jections to it's admission were well taken.
and gIIhgpnnpOt n ITS conditional oH Hr1,io-
sion as stated, he virtually ruled it out of
evidence.
The appellant claims, and made the
point below, that he was entitled to iudg-
ment on the ground that the respondents
failed to deny the matters alleged in his af-
idavit; that without any answer no issue
was raised, and his case stood confessed.
The court held that no answer was neces-
sary, and that the case stood for trial upon
the allegations of the affidavit, without
any denial, and that the plaintiff in said
special proceeding must make his claim
good by proof.
The chapter referred to provides that
''Sec. $50. When any other person than
the Judgment debtor shall claim property
levied upon or attached, he may have the
right to demand and receive the same
from the sheriff or other officer making the
attachment or levy, upon his making an
affidavit that the property is his, or That
llG Las q I4Sllb " JllO lLhulbuldb6 POSSES
sion thereof, stating on oath the value
thereof, and giving to the sheriff or officer
a bond, with sureties in double the valne
of such property, conditioned that he will
appear at the next term of the district
court of the county in which the property
was seized, which shall commence ten
days or more after the bond is accepted by
the sheriff or other officer, and make good
his title to the same, or that he will return
the property or pay its value to the said
sheriff or other officer"
"Sec. 352. The officer shall return the
affidavit, bond and justification, if any, to
the Office of the clerk of the district court,
and the clerk shall place the same upon
his trial docket at the first term, which
shall commence ten days or more after it
was accepted by the sheriff, or officer as
above provided for, and it shall stand for
trial at that term"
"Sec. 353. The person claiming the
property shall be plaintiff and the sheriff
and plaintiff in the execution, defendants. I"
"Sec. 354. If the claimant makes good
his title to the property the bond shall be
cancelled; if to a portion thereof, a like
proportion of the bond shall be cancelled !;
but if he shall not maintain his title, judg-
ment shall be rendered against him and
his sureties for the value of the property,
or for such less amount as shall not exceed
the amount due on the original execution
1t nowhere makes provision for any
answer or other pleading. 1t requires the
claimant to appear and make good his title
to the property. 1t provides that the pro-
ceeding may be tried at any time after ten
days, and the general provisions as to the
time for pleading in other causes would
not apply. 1t is a proceeding somewhat
summary in character, and no pleadings
other than the affidavit mentioned, if that
is to be considered one, seem to have been
contemplated. 1t is irregular in any view
that can be taken of it. Doubtless the de-
PENDANTS in such proceeding can contest
the claim and introduce evidence to con-
tradict the evidence of the plaintiff. If it
had been intended to require them
TO file an answer most likely the
plaintiff would have been required to file a
complaint, and some time would have
been specified within which an issue should
have been formed in this manner. 1t
would be stTaining the rules of pleading
considerably to hold the affidavit to be a
complaint. If the claimant had desired a
formal trial he could have brought an ac-
ton in repleVin, or the substituted one
provided by the code which we have held
in the case of Scott V. McGraw lately de
cided to be concurrent remedy with the
one here instituted. The only adiudicated
case upon statutory provisions substan
TALLY like the foregoing to which our atten.
ton was called is Betton Y. Willis,
Florida 262. The court there lay stres,
upon the fact that the jury were required
TO be sworn to try the right of property
not to try the issue. Our statutory pro
visions make no mention Of any issue, no,
of a trial by jury. The right to a jury
trial of such matters, however. doubtless
exists, and the sole question is, was tn,
claimant the owner of the property O
entitled to its possession2 We are Of tn,
opinion that no error is shown in tn
premises.
Had the bill of sale been properly brough
here a different holding might have re
suited, for as at present advised we are in
clined to the view that the debtor can with
out fraud place his property in the hand
of third party to pay his indebtedness