Baker v. Northwest Bldg. & Inv. Co.

• Citation: 33 Wash. 677,74 P. 825
• Court: United States State Supreme Court of Washington
• Decision Date: 31 December 1903
• Parties: BAKER v. NORTHWEST BLDG. & INV. CO. et al.

74 P. 825

33 Wash. 677

BAKER v. NORTHWEST BLDG. & INV. CO. et al.

Supreme Court of Washington

December 31, 1903

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by John S. Baker against the Northwest Building & Investment Company and another. From a judgment in favor of plaintiff defendants appealed. Application by Peter A. Berg to be substituted as plaintiff and respondent. Application granted.

James F. O'Brien and Newton H. Peer, for appellants.

J. M Ashton and W. L. Sachse, for respondent. Chas. O. Bates, for Mr. Berg.

PER CURIAM.

This was an application by Peter A. Berg to be substituted as plaintiff and respondent in this case in place of John S Baker. The action was brought in the lower court by John S Baker to restrain the continuance of a public nuisance in the city of Tacoma. The complaint alleges, in substance, that the plaintiff was the owner of three certain lots of land in Tacoma, adjoining property upon which a bawdyhouse was being maintained by defendants, and that, by reason of the proximity of said bawdyhouse to his said lots plaintiff was specially injured in a manner different from the general public. Upon a hearing in the lower court, defendants' demurrer to the complaint was overruled, and an injunction pendente lite was issued. From the order overruling this demurrer and granting the restraining order, the defendants appealed to this court. After the appeal had been taken, the respondent Baker sold all his interest in and to the lots owned by him, and described in the complaint, to the applicant, Peter A. Berg. Mr. Berg now moves this court to be substituted as respondent in place of Mr. Baker.

We think the application should be granted. Section 4824 Ballinger's Ann. Codes & St., provides that every action shall be prosecuted in the name of the real party in interest. Section 4837 provides that no action shall abate by the transfer of any interest therein, if the cause of action survive or continue, but the court may allow the action to be continued by the successor in interest. Under code provisions similar to our own, substitution has been allowed in the following cases: McKinnis v. Mortgage Co., 55 Kan. 259, 39 P. 1018; Keough v. McNitt, 7 Minn. 29 (Gil. 15); and Nickerson v. Crawford (Sup.) 11 N.Y.S. 503. The respondent, having sold and assigned all of his right, title, and interest in and to the property affected by the nuisance, has no...