Damon v. Leque

• Citation: 17 Wash. 573,50 P. 485
• Parties: DAMON ET AL. v. LEQUE ET AL.
• Decision Date: 14 September 1897
• Court: Washington Supreme Court

50 P. 485

17 Wash. 573

DAMON ET AL. v. LEQUE ET AL.

Supreme Court of Washington

September 14, 1897

Appeal from superior court, Snohomish county; John C. Denny, Judge.

Action by Albert O. Damon and another against N. P. Leque and others to foreclose a mortgage. From a judgment in favor of plaintiffs, all parties appealed. Reversed.

Dunbar J., dissenting.

Byron Millett and E. L. Minard, for plaintiffs.

Andrew Woods and Burke, Shepard & Woods, for defendants.

SCOTT C.J.

This action is founded upon the following facts: In December 1877, one Iverson and wife executed their note to the plaintiff Albert O. Damon, in the sum of $950 and interest due one year from date, and, to secure payment thereof, also executed to him a mortgage upon the lands in controversy in this action. Thereafter N. P. Leque obtained a sheriff's deed to said lands, in pursuance of a purchase by him at an execution sale under a judgment rendered against Iverson in favor of one Haller, and said Leque and wife thereafter conveyed said lands to Peter Leque. Said sheriff's deed was executed in March, 1885, and said Leques entered into possession of the premises. Subsequently, in July, 1885, the plaintiff Albert O. Damon commenced an action to foreclose said mortgage against Iverson and wife, but did not make any of the Leques parties thereto. Iverson appeared in said action, and admitted the validity of the claim. A decree of foreclosure was rendered, and the lands were sold in pursuance thereof to said plaintiff. In June, 1892, the present action was commenced by Damon and wife against N. P and Peter Leque and their respective wives, which purported to be one to remove a cloud from title, and also to obtain possession of the lands. A general demurrer was interposed by the defendants, which was sustained by the court, and judgment rendered against the plaintiffs. Upon an appeal by them, this court held that the complaint, under the liberal rule with regard to construing pleadings recognized here, stated facts sufficient to entitle the plaintiffs to a foreclosure of the mortgage, and the judgment was reversed, and the cause remanded for trial. 14 Wash. 253, 44 P. 261. A trial was subsequently had, and a judgment rendered in favor of the plaintiffs, from which both parties have appealed; the plaintiffs alleging that they were entitled to judgment in a greater sum than that allowed by the court, and the defendants contending that the plaintiffs were not entitled to judgment at all upon the facts, on the ground that the statute of limitations had run against the claim, which statute the defendants had pleaded in their answer.

A motion is made to dismiss the appeal of the defendants, because it was not taken within 10 days after the plaintiffs had appealed, and because an independent or subsequent appeal cannot be maintained in the same cause. But the defendants were not required to proceed under section 5 of the appeal act (Laws 1893, p. 121), because their interests were not similarly affected to those of the plaintiffs, within the meaning of the statute; and while, after the disposition of an equity cause, the court will not hear a subsequent appeal from the same judgment ( Hill v. Sawyer, 14 Wash. 275, 44 P. 537), yet in a case like this, where the appeals are all perfected and the cause submitted to the court at one time, so the whole matter may be finally disposed of, they may be entertained, as the objections stated in the case cited do not apply, and the motion is denied.

As the appeal of the defendants goes to the whole case, it will be first taken up, and several minor questions growing out of their contention will be first considered.

The plaintiffs contend that the defendants are not entitled to the benefit of said statute, in consequence of not having raised the question by a special demurrer to the complaint, in accordance with sections 189 and 190, 2 Hill's Code. And this position would be well taken if the defect clearly appeared upon the face of the complaint; but in this instance we are of the opinion that it did not so appear, and especially when considering the purported nature of the action. Consequently, the defendants were entitled to raise the question by the answer.

It is further contended by the plaintiffs that the note was merged in the judgment, and that this action must be regarded as upon the judgment, and that the statute of limitations had not run against it. But under all the authorities, the Leques not having been made parties to the foreclosure suit, the judgment therein rendered against the Iversons can have no force against them, and could not cut off their right to plead the statute against the claim.

It is also contended by the plaintiffs that the...