Kath v. Brown

• Decision Date: 11 June 1909
• Citation: 102 P. 424,53 Wash. 480
• Parties: KATH v. BROWN (HISTOGENETIC MEDICINE CO., Intervener.
• Court: Washington Supreme Court

102 P. 424

53 Wash. 480

KATH v. BROWN (HISTOGENETIC MEDICINE CO., Intervener.

Supreme Court of Washington

June 11, 1909

Department 1. Appeal from Superior Court, King County; Geo. E. Morris Judge.

Action by Robert Kath against S. L. Brown, the Histogenetic Medicine Company intervening. From an adverse judgment, plaintiff appeals. Affirmed.

Bevington & Finch, for appellant.

Jay C Allen, for respondent.

CHADWICK J.

On the 17th day of December, 1906, a judgment was rendered by Hon William R. Bell, acting as judge pro tempore, in an action wherein appellant was plaintiff and S. L. Brown was defendant, and the Histogenetic Medicine Company, a corporation, was intervener. The decision of the judge pro tempore was adverse to plaintiff. A motion for a new trial supported by affidavits was introduced. We do not find the motion for a new trial or the affidavits in support thereof in the record, but the breadth of the motion can be measured by the order of the court entered on the 29th day of December, 1906, which is as follows: 'Be it remembered that the above-entitled matter came on regularly for hearing on the 29th day of December, 1906, upon the motion of the plaintiff for an order vacating the judgment and decree heretofore entered herein and for a new trial, plaintiff appearing by his attorneys, and intervener appearing by its attorney Jay C. Allen, and the court, considering the affidavits filed in support of said motion, and after argument of counsel and being fully advised in the law and the premises, does deny said motion, to which order and ruling plaintiff excepts and an exception is allowed.' An appeal was prosecuted from that judgment to this court.

Thereafter a motion supported by affidavit, showing the appeal to have been abandoned, was entertained by this court, and a judgment affirming the judgment of the court below was entered. A remittitur went down on the 8th day of July, 1907. On the 20th day of July following, appellant, who was plaintiff in the first instance, as he is now, filed his petition in the court below to vacate the judgment originally entered upon grounds sounding in fraud and conspiracy between his attorney, the intervener, and others who had been connected with the transaction attending the transmission of title from appellant to the respondent. This petition came on regularly to be heard before the Honorable George E. Morris, then a superior judge of King county, who evidently tried the full merits of the original controversy between the parties as well as the charges of fraud and conspiracy. We are aware that it is the contention of the appellant that this is not so, but the record hardly bears out his contention. Evidence upon every issue was tendered by the appellant and challenged by respondent, witnesses impeached, and characters assailed. All documents and records having any possible, even remote bearing upon the differences existing between the parties were introduced, and the ruling of the court which is made a part of the transcript clearly shows that he decided the case as if upon the merits and finally. While in Williams v Breen, 25 Wash. 666, 66 P. 103, we held that it was not necessary or within the contemplation of the law for a court to try out the merits of a case upon petition to vacate a judgment, but rather to determine the...