Marble Sav. Bank v. Williams

• Decision Date: 11 January 1901
• Citation: 63 P. 511,23 Wash. 766
• Court: Washington Supreme Court
• Parties: MARBLE SAV. BANK v. WILLIAMS et al.

63 P. 511

23 Wash. 766

MARBLE SAV. BANK v. WILLIAMS et al.

Supreme Court of Washington

January 11, 1901

Appeal from superior court, Pacific county; H. S. Elliott, Judge.

Action by the Marble Savings Bank against W. R. Williams and others as the board of county commissioners of Pacific county, and school district No. 4 of Pacific county. From a judgment for plaintiff, defendants appeal. Affirmed.

Welsh &amp Thorp, for appellants.

Hewen & Stratton and Cotton, Teal & Minor, for respondent.

DUNBAR C.J.

In August, 1892, school district No. 4 of Pacific county, in consideration of the sum of $5,137.50, paid to it by Farson Leach & Co., issued to said company its negotiable bonds in the sum of $5,000, payable 20 years after August 1, 1892 bearing interest at the rate of 7 per cent. per annum payable semiannually. Interest installments were evidenced by interest coupons attached to each bond. Said bonds were issued for the purpose of purchasing a school-house site and erecting and furnishing a school house for said district. The respondent herein, on or about December 8, 1892, purchased the bonds so issued of C. H. White & Co., who had become the owners of the same. It is conceded that none of the interest sued for in this action has been paid. In October, 1898, C. H. White & Co., on behalf of respondent, filed a petition praying for a writ of mandate to require the defendants (appellants) to levy a bond interest tax on the property situated in school district No. 4 sufficient to pay the interest then accrued on said bonds, amounting to $1,050. To this petition the school district filed an answer containing three separate affirmative defenses,--one alleging that the school district was in debt over and above the constitutional limitation at the time the bonds were issued; one alleging that the bonds were sold at private sale, without notice, and also fraud and conspiracy in the bidding and issuance of the bonds, and that the plaintiff was a party to the fraud; and the third that at the time the bonds and coupons were issued the school district comprised a large portion of land which had since been cut off therefrom, and comprised and was a part of other school districts. To these defenses the plaintiff interposed a demurrer, which was overruled, and, the plaintiff electing not to plead further, judgment of dismissal was taken in favor of the defendants. Subsequently this action was brought by the respondent against the same defendants for the recovery of the interest due upon the coupons of the aforesaid bonds, and the judgment in the former action was pleaded as an estoppel to the action now pending. Upon the trial of the cause, over the appellants' objection, testimony was introduced tending to show that the court, in dismissing the action of C. H. White & Co., did not rule, adjudge, or decide any question involving the validity of the bonds or interest coupons, and did not adjudicate any of the issues joined in the present action, but dismissed said suit of C. H. White & Co., and rendered judgment therein on the sole ground that the moneys then in the hands of the county treasurer were not applicable to the payment of the interest coupons; and the finding of the court in the present case is to that effect. The reply of the respondent alleged that the district appeared and answered the complaint in the first action to the effect that none of the moneys then in the possession of the county treasurer were applicable to the payment of the coupons sued on, and that the court sustained this plea of the defendants in that suit, and rendered the judgment pleaded on that defense alone; but did not rule, adjudge, or decide any of the other defenses pleaded by the defendants, did not rule, adjudge, or decide on the validity of said bonds or interest coupons, and did not adjudicate any of the issues joined in the present action. Upon the trial of the cause judgment was rendered in favor of the respondent for the amount demanded.

There are but two questions presented by the record in this case: (1) Has the respondent, a foreign corporation, a right to sue in the courts of Washington without appointing any agent in the state or filing the appointment of such agent in the office of the secretary of state? (2) Is respondent estopped by the judgment rendered in the case of C. H. White & Co.? We will not take time to discuss the first proposition, for it has been twice decided by this court against respondent's contention; first in Foundry Co. v. Augustive, 5 Wash. 67, 31 P. 327, and then in La France Fire-Engine Co. v. Town of Mt. Vernon, 9 Wash. 142, 37 P. 287, 38 P. 80, which approved the former case.

The second proposition is of broader import, as the decisions upon the question of res adjudicata are numerous, and somewhat bewildering. Certain propositions are advanced by the appellants which it is claimed the authorities sustain viz.: 'While parol evidence may be received to show what was litigated upon the trial, it must be consistent with the record, and cannot be admitted to explain or contradict it.' 'Where the defendant pleads res adjudicata, parol evidence is not admissible to contradict the record, and substitute the opinion of witnesses as to the meaning and effect of the pleadings and judgment in the former case.' 'It cannot be shown by parol evidence in opposition to the record that a question which appears by it to have been settled was not in fact litigated.' 'Where it appears by the record that a particular issue was determined, all questions of fact are excluded, and the court must, as a matter of law, declare such determination to exist, and to be conclusive.' 'A judgment bars not only every defense raised, but every defense that might have been raised.' We are not certain but that the soundness of all these propositions, with the exception of the last, might be conceded without, as a consequence, working a reversal of this case. As to the last proposition, it is rather a loose expression of the law, which has frequently been used and has been stated as a general proposition by this court in the cases cited by appellants. The essential thing to determine is whether or not the question involved in the second suit was actually litigated in the first. The doctrine of res adjudicata is based upon this proposition. It is true that, for the purpose of preserving the verity of judgments, and making stable and enduring the judgments of courts, the law employs certain presumptions in favor of the judgment; but these presumptions must not interfere with investigations which elicit the truth. Consequently, if it does not conclusively appear from the record that the matter in dispute was adjudicated, evidence will be admitted to ascertain that fact. All the authorities hold that an estoppel will not be pronounced when it affirmatively appears from the whole record that the point in controversy was not actually adjudicated, even where it might have been adjudicated under the pleadings; that is to say, that presumptions will not balance or outweigh the affirmative showing of the record,--as when, for instance, an opinion has been filed which indicates upon what particular point the judgment was granted, where, under the pleadings, it might have been granted on one or more points raised by the pleadings. If, in this case, the judge had rendered an opinion stating that the demurrer was overruled because it appeared that the funds sought could not be made responsive to the judgment asked, and that it was, therefore, not necessary to enter into an investigation of the other defenses, it would be plain, under all authority, that estoppel could not be successfully invoked. Not having done that, the judge in this case, who was the same judge who tried the former case, heard testimony to the effect that the judgment which he announced...