Cook v. Tibbals

The opinion of the court was delivered by Dunbar, J. The respondent moves to dismiss the appeal in this case on the ground that the bond on appeal is insufficient in form and substance, ineffectual and void, in that the principal in said bond has failed to execute the same. The bond in this case is executed by R. W. Jennings, as attorney for the appellant. It is contended by the respondent that this is not such a bond as is contemplated by the statute. Our statute is not such a statute as prevailed in states in which many of the cases cited by respondent existed, for it provides that a bond may he made on behalf of the appellant with two or more sureties; so that it is not actually necessary that the appellant should sign the bond at all. However, we are inclined to think that there must be a bond and a proper bond given on behalf of the appellant, which was probably not done in this case, for this bond purports to be the bond of the appellant and not a bond executed in her behalf. But the statute provides that all questions of this kind, viz., questions as to the sufficiency of the bond, must be submitted to the lower court, and [210] as the bond was not moved against in that court, the motion-will not be entertained here. It is also urged by the respondent that no proper exceptions were taken to the statement of facts in this case, and an examination of the record shows this contention to be correct. After the announcement by the court of the findings of fact, the record entry is: “ To all of which the defendant Page excepts, which exceptions are allowed.” This exception is too general to constitute the exception provided for by the law, and has been so held by this court in Rice v. Stevens, 9 Wash. 298 (37 Pac. 440); and it has been the uniform holding of this court since in so many cases that it is not worth while to discuss them here. This disposes, then, of the statement of facts in the case, and leaves only the question of the sufficiency of the pleadings. A demurrer was interposed to the complaint, on the ground that it did not state facts sufficient to constitute a cause • of action. This was an action to set aside a certain conveyance as being in fraud of creditors, and it is claimed by the appellant that the'conveyance cannot-be impeached as fraudulent unless it be shown by distinct averment in the complaint that the debtor had no other property at the time the conveyance was made. It is, no doubt, true as a general proposition that to allege that the conveyance was made for the purpose of defrauding creditors, while at the same time the debtor had other property out of which the creditor could make his debt, would be an inconsistent statement; and it is also true that it is no concern of the creditor what the object was which actuated the sale, if sufficient property was left to the vendor to satisfy any judgments which the creditor would rightfully obtain against [211] him; and unless it affirmatively appears that such is not the case, we think with the appellant that the complaint would not be sufficient. But it seems to us that the allegations of the complaint that “the said execution has been returned by the sheriff wholly unsatisfied,” and that “ the defendant H. L. Tibbals, sr., has no other property out of which the plaintiff could make her said judgment, are averments which are amply sufficient to sustain the complaint, so far as the particular objection pointed out by the brief of the appellant is concerned. The statement of facts, then, not being considered, and the pleadings, as we deem them, being sufficient, the judgment of the lower court will be affirmed. Hoyt, C. J., and Scott and Gordon, JJ., concur.