Washington Liquor Co. v. Alladio Cafe Co.

The opinion of the court was delivered by

Mount, J.

— On July 5, 1901, appellants sued out and levied writs of attachment upon the property of the Alladio Cafe Company, a corporation in the city of Spokane. On the next day respondents filed in the superior court of Spokane county a complaint against the defendant, the Alladio Cafe Company, a corporation, alleging the insolvency of said corporation, that it had ceased to do business, and that they were creditors of said corporation, and praying for a receiver of the assets of said corporation. On the same day a receiver was appointed temporarily. On the 9th an amended complaint was filed, making the respondents and R. C. Harbord, the officer who had levied the writs, and who was in charge of the assets of the corporation thereunder, parties thereto. On the 10th, all the parties appearing except the defendant Alladio Cafe Company, the court made an order apppinting a receiver, and directing him to talco charge of all the property of the corporation; reserving the question of priority of claims of attaching creditors. Subsequently, on September 25, 1901, the cause came on for hearing on motion to dissolve the attachments; and the court made an order dissolving the attachment of respondents, and declaring their claims general claims against the assets of the corporation, and adjudging that 'the same share ratably with the other creditors thereof. Prom this order1 an appeal is taken.

We are urged by appellants to reconsider the decisions of this court wherein it has been announced that the assets of an insolvent corporation are trust funds for all the creditors thereof. Without again entering into a discussion of that question, we desire to say, in the language of Compton v. Schwabacher Bros. & Co., 15 Wash. 306 (46 Pac. 338), that, “whatever rule may prevail elsewhere, it is now7 well settled in this state that the assets of an insolvent corporation constitute a trust fund for the benefit of all of its creditors.” We are satisfied with, that rule.

It is insisted here that the allegations of insolvency in the complaint were denied by the answer, and that when the court v7as considering the question upon the motion the answer denying insolvency, though not filed, was before the court, and considered by the court, and therefore upon this appeal it must be conceded that the corporation was not insolvent, because no evidence was offered or received at the hearing. It appears from the record that the motion was heard and decided and the order entered on September 25, 1901. The answer was n<j>t filed until' October 14th, thereafter. It is admitted by counsel for respondents that the answer was served on them prior to the hearing. TTo statement of facts or bill of exceptions is brought here. The court belW, when requested to certify to this court that he had considered the answer and the allegations therein upon the motion, expressly refused to do so. Affidavits were subsequently filed in this court contradicting the record in this respect, and. we are asked, in case we conclude there is not sufficient in the record to show that the court below did consider the answer which was not filed, to grant a writ of mandamus compelling the judge to certify the facts as they appeared before him, or to extend time to the appellants to get a nunc pro tunc order from the court below filing the answer prior to the hearing. Such practice cannot be tolerated. Appellants have made their record. They have brought it here, and attempted to contradict it by affidavits. If the record is not correct, they had ample remedy and opportunity to make it so before the cause was submitted. They cannot be permitted to try their cause upon the record as they bring it here, and, if not successful, have a re-trial upon some other record.

The cause will be affirmed.

Beavis, C. J., and Eullerton, Hadley,^ White, Anders and Dunbar, JJ., concur.