Globe Const. Co. v. Yost, 23761.

• Decision Date: 19 August 1932
• Docket Number: 23761.
• Parties: GLOBE CONST. CO. v. YOST et al.
• Court: Washington Supreme Court

13 P.2d 433

169 Wash. 319

GLOBE CONST. CO. v. YOST et al.

No. 23761.

Supreme Court of Washington

August 19, 1932

Department 1.

Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

Action by the Globe Construction Company against Amanda C. Yost and others. From an adverse judgment, plaintiff appeals.

Affirmed.

J. W A. Nichols and F. K. P. Paske, both of Seattle, for appellant.

G. W Louttit, of Everett, for respondents.

STEINERT J.

On April 14, 1931, plaintiff began an action in ejectment against defendants to quiet title to certain real estate in Snohomish county, Wash., and for damages for withholding possession thereof from plaintiff. Defendants answered by way of general denial and also by way of an affirmative defense alleging that in a former action, begun December 11, 1930, they had acquired title to the property through mortgage foreclosure proceedings. Later, defendants by a separate pleading incorporated an additional affirmative defense in their answer. Plaintiff filed replies consisting of admissions and denials and also affirmative matter alleging that service had not been obtained on the principal defendant in the former action.

When the case was called for trial, a jury was impaneled but not sworn. According to the memorandum opinion filed by the trial court, plaintiff's counsel then made an opening statement, although a reporter does not seem to have been present at the time or else he did not report the statement at any rate, it does not appear in the record. Before any evidence was taken, defendants' counsel suggested to the court that a preliminary question of jurisdiction should first be determined. The jury was then excused and a protracted argument between court and counsel ensued. The argument was mainly directed to the question of what effect the proceedings and judgment in the prior action had upon the present action.

In order to fully understand the situation it is necessary, at this point, to detail some of the facts with reference to the other case, which was cause No. 29485 of the superior court for Snohomish county. It appears that Seattle Conifer Nursery, a corporation, on April 26, 1928, executed and delivered to the defendant herein, Amanda C. Yost, its note for $5,000 secured by a mortgage on the real estate herein involved. The mortgage was duly recorded April 27, 1928. Upon default in certain interest payments, the mortgagee declared the whole amount of principal and interest due and brought a foreclosure action. Among the parties defendant was one Sue Neill Powers, alleged in the complaint to have some interest in the property, but subject to the lien of the mortgage. Later, the complaint was amended to bring in an additional party, Carl M. Lundstrom, who was the president of the plaintiff in this action. A notice of lis pendens was filed at the time that the suit was originally begun, and a second notice filed at the time that the complaint was amended. Pending the action, a receiver of the property was appointed and duly qualified. Service was had upon the corporation, Seattle Conifer Nursery, by delivering a copy of the summons and complaint to Sue Neill Powers, its secretary. No appearance was made by the corporation or by Lund strom and a default was taken against each of them. Sue Neill Powers entered her appearance, but upon her failure to file any answer a default was taken against her. The cause coming on for trial, a judgment of foreclosure was entered March 7, 1931, and thereafter, on April 18, 1931, the real estate was sold under execution by the sheriff and bid in by the plaintiff in that action, Amanda C. Yost, who is one of the defendants here, for the amount of her judgment. In the meantime, the receiver was retained to preserve certain shrubbery and other personal property on the premises. On May 2, 1931, the plaintiff herein, on its own motion, was substituted as defendant in that action in place of Sue Neill Powers. On May 6, 1931, plaintiff filed a motion in that case asking that the order appointing a receiver therein be vacated. The motion was supported by the affidavit of Carl M. Lundstrom, president of the plaintiff, who alleged that the plaintiff had become the owner of the property on October 25, 1930. The motion to vacate was subsequently denied. Plaintiff's deed evidencing its title to the property was not of record at the time that the present action was begun nor at the time that the notices of lis pendens were filed.

Coming back to the present case, it is apparent from the record Before us that all the parties considered that the record in the former case was properly Before the court in the preliminary argument between court and counsel. In fact, the court said in the early part of the discussion: 'Now, we are assuming now that this foreclosure record is in evidence for the purpose of this ruling. I will assume that this foreclosure record is in evidence in this case.' Counsel made no objection to such assumption by the court and themselves repeatedly referred to portions of that record. After the trial judge had in various ways indicated the trend of his views, he announced that he would take the case under advisement and permit counsel to submit briefs, under the assumption 'that the records in cause No. 29485 were in evidence Before the court for the purpose of making this ruling.' He further said: 'So the facts are true in said cause, but when the court takes judicial notice by agreement of Cause No. 29485, it then presents a legal question as to whether or not you can now assert in an independent action a title to property which was subsequency litigated in an action in which you were a party and I am very, very, very strong of the opinion that that can't be done, but, as I have stated, I would very much prefer to have you file a brief.' And still further: 'If a motion is made for judgment on the pleadings, that is, admitting in evidence the files and records in Cause No. 29485, So that is what I am doing, and at the expiration of ten days, if I don't have a brief from counsel for the plaintiff I will on the record as it is presented to the court, dismiss the action.'

The foregoing proceedings occurred September 23, 1931. Under the status of the case as it then stood the cause was taken under advisement, and counsel subsequently filed their briefs. On October 30, 1931, the court, after...