Box v. Kelse

• Citation: 5 Wash. 360,31 P. 973
• Parties: BOX ET AL. v. KELSE ET AL.
• Decision Date: 13 December 1892
• Court: United States State Supreme Court of Washington

31 P. 973

5 Wash. 360

BOX ET AL. v. KELSE ET AL.

Supreme Court of Washington

December 13, 1892

Appeal from superior court, Lewis county; EDWARD F. HUNTER, Judge.

Action by William H. Box and Henry C. Rhodes, partners as Chehalis Shingle Co., against John Kelso, D. A. Webster, and John F Dare, partners as Kelso, Webster & Dare, for injury to timber. Plaintiffs obtained juidgment. Defendants appeal. Affirmed.

Griggs & Lockwood, ( J. F. Greathouse, of counsel,) for appellants.

Reynolds & Stewart, for respondents.

ANDERS, C.J.

The respondents brought this action against the appellants to recover damages for the loss of certain standing cedar trees and the timber in certain shingle bolts on an 80-acre tract of land, described in the complaint, which property they alleged was on September 5, 1890, destroyed by fire by reason of the negligence and carelessness of the appellants. It appears from the evidence that one Dodge had contracted with the respondents to convert the timber on the land described in the complaint into shingle bolts, and to deliver the same to the respondents on the banks of the Chehalis river, and that, in pursuance of his agreement, he had caused to be cut on the east 40 acres of said land, between the month of May and the said 5th day of September, some 600 or 700 cords of bolts, which at the latter date were still lying on the ground where they were cut. The timber on the land adjoining the premises of the respondents on the north had been mostly cut down the year previous, and the bodies of the trees cut into shingle bolts, and the tops, limbs, bark, and refuse parts of the trees were scattered all over the ground, and were very dry and inflammable. About the 1st of May, the appellants, with a large number of men, commenced to clear a right of way for the Yakima & Pacific Coast Railroad Company on this adjoining tract, and about 200 or 300 yards north of the land upon which the respondents' property was burned. In doing this work the appellants piled up the logs, brush and other combustible material which was upon the right of way, and set fire to it. On the said 5th day of September a fire broke out on the land immediately south of the right of way, which quickly extended across the same, and to the timber and shingle bolts of the respondents, which it consumed. It was claimed by the respondents and denied by the appellants that this fire was communicated from the right of way on account of the negligence and carelessness of appellants in watching and tending the fires thereon kindled by them.

At the trial the appellants offered in evidence a deed of general assignment from the respondents to one John Newland, as assignee for the benefit of their creditors, which bore date some time subsequent to the commencement of this action. The court refused to permit the deed to be introduced in evidence, and appellants duly excepted. This ruling of the court is assigned as error.

It is claimed by the learned counsel for the appellants that by that deed of assignment all of the property of the respondents, including the right to maintain this action, passed to the assignee, and that the evidence offered was material upon the question of ownership, and ought therefore to have been admitted, and the cause dismissed, or the assignee substituted as plaintiff, and the cause continued; in other words, it is insisted that the rejected evidence would have shown that the respondents were not the real parties in interest, and consequently had no right to prosecute the action. No question is made as to the right of the respondents to institute this action, but it is claimed that they lost the right to further prosecute it by the making of their assignment. In this we think counsel are in error. At common law the death of the plaintiff, or the termination of his interest in the subject-matter of the action, was good ground upon which to base a plea in abatement. But under our statute the rule is different. By section 134 of the Code of Procedure it is provided that "every action shall be prosecuted in the name of the real party in interest, except as is otherwise provided by law." But this section must be taken in connection with section 147, by which its operation is limited. The latter section provides that "no action shall abate by the death, marriage, or other disability of the party, or by the transfer of any interest therein, if the cause of action survive or continue; but the court may, at any time within one year thereafter, on motion, allow the action to be continued by or against his representatives or successors." Under the provisions of section 147 this action did not abate even if, as appellants claim, the interest of the respondents therein was transferred to their assignee pendente lite; and, this being so, we think that the respondents were entitled to prosecute it, in their own names, to final judgment. If the assignee became entitled to the interest of the plaintiffs in the action, he was the proper party to move in the matter of substitution, and not the defendants. Smith v. Harrington, (Wyo.) 27 P. 803. As against the latter, the plaintiffs had a right to remain in court until their case was tried. Moss v. Shear, 30 Cal. 467, 475. In the case of O'Neil v. Dougherty, 46 Cal. 575, the court held that the bankruptcy of the appellant, though adjudicated before the...