Kath v. Brown

• Decision Date: 15 July 1912
• Parties: KATH v. BROWN et al.
• Court: Washington Supreme Court

124 P. 900

69 Wash. 306

KATH v. BROWN et al.

Supreme Court of Washington

July 15, 1912

Department 2. Application by Robert Kath for permission to file a petition in the court below to vacate a judgment obtained by S. L. Brown and others. Application denied.

Paul Shaffrath, of Seattle, for appellant.

A. G McBride, of Seattle, for respondents.

MOUNT J.

This is an application to this court for permission to file a petition in the lower court to vacate a judgment heretofore affirmed by this court. It is alleged in the application that the judgment in the lower court was obtained by fraud. It appears that an appeal was prosecuted to this court by the plaintiff in that action. That appeal was abandoned and dismissed in July, 1907. Thereafter a petition was filed in the case in the lower court to set aside the judgment upon the ground of fraud and conspiracy. The questions then presented were heard, and the trial court refused to set the judgment aside. An appeal was prosecuted from that order to this court. That appeal was dismissed on June 11, 1909, and the judgment affirmed for the reason that the trial court had no jurisdiction to hear the questions presented without permission of this court. Kath v Brown, 53 Wash. 480, 102 P. 424, 132 Am. St. Rep. 1084.

Thereafter an action was brought by the defendant in that action against the plaintiff to restrain the plaintiff from bringing actions affecting the title of the real estate in question. That action came on regularly for trial and resulted in the decree restraining the plaintiff, who is the petitioner here, from 'bringing or instituting against the plaintiff herein, or against the plaintiff's successors or assigns, any suit or action in this court affecting the title to the following described real property.' Then follows a description of the property in question. That decree was entered on October 22, 1910, and is in full force and effect. It was not appealed from. It therefore appears in this case that the applicant has once unsuccessfully tried the same questions in the lower court which he now seeks permission to again try. It is true he claims to have some newly discovered evidence but the questions are the same. It also appears that he has neglected for three years to avail himself of the remedy pointed out in Kath v. Brown, supra, and that in the meantime a restraining order has been issued against him, which order has become final and...