Cugini v. Apex Mercury Min. Co.

• Citation: 24 Wn.2d 401,165 P.2d 82
• Decision Date: 18 January 1946
• Docket Number: 29704.
• Parties: CUGINI et ux. v. APEX MERCURY MINING CO. et al.
• Court: United States State Supreme Court of Washington

165 P.2d 82

24 Wn.2d 401

CUGINI et ux. v. APEX MERCURY MINING CO. et al.

No. 29704.

Supreme Court of Washington, En Banc.

January 18, 1946

Suit by Alex Cugini and Josephine Cugini, his wife, against the Apex Mercury Mining Company, a corporation, and others, to quiet title to a tract of timber. From the judgment, the plaintiffs appeal.

Affirmed.

MILLARD and BEALS, JJ., dissenting.

Appeal from Superior Court, Pierce County; E. D Hodge, Judge.

Little Leader, LeSourd & Palmer, of Seattle, for appellants.

Leo Teats and Ralph Teats, both of Tacoma, for respondents.

SIMPSON Justice.

Plaintiffs instituted this suit in Lewis county, Wash., to quiet title to a tract of timber situated in that county. Defendants presented a motion for a transfer of the action to Pierce county for trial on the ground that the convenience of witnesses would be served thereby. The motion was granted the cause was transferred to Pierce county and there tried. At the conclusion of plaintiffs' case, the trial court granted a motion for nonsuit. Plaintiffs have appealed.

Their assignments of error are: (1) In transferring the cause for trial to Pierce county; (2) in finding that no oral agreement regarding the time for removal of the timber was made at the time the timber deed was delivered; (3) in holding that there was no oral agreement of extension made in 1943 when certain taxes were paid; (4) in holding that plaintiff knew that he was paying the fire patrol taxes on the timber; (5) in granting defendant's motion for nonsuit; and (6) in dismissing the action.

For convenience, we will refer to Alex Cugini as appellant and to the mining company as respondent.

The facts may be summarized as follows: May 5, 1942, appellant, for a cash consideration, purchased from respondent the growing timber upon property situated in Lewis county. The deed recited that the 'timber will be removed from said above described property within one year from date hereof.' On the same date, a letter reading as follows:

'Tacoma, Washington, May 5th, 1942. It is agreed and understood that if the party purchasing the timber from the Apex Mercury Mining Company, a corporation, covering Lots Six and Seven and the Northwest Quarter of the Southeast Quarter of Section 6, Twp. 12 North, Range 5 East, W.M., Lewis County, Washington, is unable to remove all the timber from said property on or Before one year from date hereof, will at that time, give you permission to take six months longer to remove same. Providing it does not in any way interfere with mining purposes. And due diligence has been used in removing same.

'Signed Apex Mercury Mining Co., By Fred Diedrich, Pres. M. M. Miller, Sec'y.' was given to appellant.

The timber was not removed within the time specified in the deed, nor within six months thereafter, though it could have been removed in three and a half months.

In June, 1943, appellant visited the office of respondent and asked to be allowed another year in which to remove the timber. His request was denied by officers of respondent. Appellant testified that Mrs. Miller, secretary of respondent, said, 'Yes.' He testified further that he was offered an extension of time if he would pay for it and that he stated that he would give $250 for the additional time of one year. He also testified that he was asked to pay the 1942 timber taxes and fire patrol taxes, both of which he paid.

November 2, 1944, respondent notified appellant that he had forfeited all his rights given him by the deed of May 5, 1942, for the reason that he had not removed the timber within the time specified.

Appellant contends, first, that this action was local in character and must be commenced and tried in Lewis county for the reason that the superior court of that county had exclusive jurisdiction. Respondent, on the other hand, urges that it was proper to grant a change of venue to another county for the purpose of trial. Rem.Rev.Stat. § 204, formerly §48, p. 11, Laws of Wash.Terr.1877, is as follows:

'Actions for the following causes shall be commenced in the county in which the subject of the action, or some part thereof, is situated:----

'1. For the recovery of, for the possession of, for the partition of, for the foreclosure of a mortgage on, or for the determination of all questions affecting the title or for any injuries to real property.'

Rem.Rev.Stat. § 209, provides that the trial court may on motion change the place of trial for certain reasons, including that of the convenience of witnesses.

It will be necessary to review our cases touching upon this subject in order to arrive at the proper conclusion. In Wood v. Mastick, 2 Wash.T. 64, 3 P. 612, the court held that actions concerning or relating to real estate must be commenced in the county or district in which the property was located.

McLeod v. Ellis, 2 Wash. 117, 26 P. 76, held that an action commenced in the county other than that where the property was located would not give the court jurisdiction.

In North Yakima v. Superior Court, 4 Wash. 655, 30 P. 1053, this court decided that the King county superior court could not determine a cause relating to personal property situated in Yakima county. The reason given for the decision was that the action was local in character and was within in the exclusive jurisdiction of the Yakima superior court.

It was decided in State ex rel. Peterson v. Superior Court, 5 Wash. 639, 32 P. 553, that an action to recover property held by a sheriff was a local one and could only be brought in the county in which the property was seized.

State ex rel. Collins v. Superior Court, 13 Wash. 187, 43 P. 19, included the question of jurisdiction of an action relative to compelling performance of a contract to convey real estate. It was held that the action was a local one and must be brought in the county where the lands were situated.

Seymour v. LaFurgey, 47 Wash. 450, 92 P. 267, is a case in which the right to remove growing timber in Mason county was the issue. The action was commenced in that county and defendant asked for a change of venue to Pierce county because he resided there and most of the witnesses lived in that county. The motion was denied and defendant appealed. The court upheld the trial court and, in so doing, stated: 'It is urged by appellant that this is a transitory action, and consequently not necessary to be tried in the county where the property is situated. We do not think this contention can be upheld. Logging contracts of this character certainly affect very materially the lands upon which the timber is growing. They contemplate that the person removing the timber must take possession of the land and use it while cutting and taking off such timber. It is the policy of our law that all transactions affecting the title to real estate shall be matters of record in the county where such real estate is situated, so that any one concerned therewith may be informed as to the condition of its title by an examination of the public records in such county. We think that this contract affected the title to and interests in these lands in such a manner as to make an action for its forfeiture local in its character. Consequently the action could be properly brought and tried in Mason county.'

Shedden v. Sylvester, 88 Wash. 348, 153 P. 1, involved the forfeiture of a mortgage upon land situated in Benton county. The parties stipulated that the case be transferred to Yakima county for trial in order to serve the convenience of witnesses. Later, an objection was made to the jurisdiction of the Yakima court. This court held that the Yakima court had jurisdiction. The decision was based upon State ex rel. Howell v. Superior Court, 82 Wash. 356, 144 P. 291, in which it was held that though the action was a local one, the trial court could grant a motion for change of venue to another court. The Howell case did not concern real estate.

State ex rel. King County v. Superior Court, 104 Wash. 268, 176 P. 352, had to do with lands located in Pierce county which had been damaged by King and Pierce counties. It was held that King county had to defend the action in Pierce county because the action was local in character.

In State ex rel. Christensen v. Superior Court, 108 Wash. 666, 185 P. 623, we decided that any superior court in this state has jurisdiction over the subject matter of an action to foreclose a lien for the construction of a ship, regardless of the location of the ship and notwithstanding § 204, which provides that actions involving the title to any specific personal property shall be commenced in the county in which the property is situated. This holding was made because of the defendant's appearance and participation in the trial without any objection to the venue.

In State ex rel. McWhorter v. Superior Court, 112 Wash. 574, 192 P. 903, it was held permissible to allow an amendment to a complaint in order to show that a transitory action was in fact local.

In Cartwright v. Kulzer, 140 Wash. 206, 248 P. 419, action was instituted in Spokane county to establish and protect certain water rights appurtenant to lands in Stevens county. Defendants moved to quash service and for change of venue to Stevens county. The motion to quash was denied and the motion for change of venue granted. The Stevens county superior court sustained a demurrer for lack of jurisdiction and dismissed the action. This court reversed the judgment of dismissal. This case, as suggested in Miles v. Chinto Mining Co., 21 Wash.2d 902, 153 P.2d 856, 156 P.2d 235, ignores the general rule as to jurisdiction in cases local in character.

In State ex rel. Green Mountain Lumber Co. v. Superior Court, 144 Wash. 351, 258 P. 27, 145 Wash. 532, 261 P 97, we find the facts to...