McGuire v. Bryant Lumber & Shingle Mill Co.

• Citation: 102 P. 237,53 Wash. 425
• Court: United States State Supreme Court of Washington
• Decision Date: 08 June 1909
• Parties: McGUIRE v. BRYANT LUMBER & SHINGLE MILL CO.

102 P. 237

53 Wash. 425

McGUIRE v. BRYANT LUMBER & SHINGLE MILL CO.

Supreme Court of Washington

June 8, 1909

Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Frank McGuire against the Bryant Lumber & Shingle Mill Company. From a judgment for defendant, plaintiff appeals. Affirmed.

P. V Davis and Wm. Parmerlee, for appellant.

Graves & Murphy, for respondent.

MORRIS J.

Appellant brought action, March 22, 1906, to recover for injuries alleged to have been sustained while in respondent's employ and through its negligence. Issue being duly joined, trial was had, and on July 3, 1906, judgment was entered dismissing the action. The principal and controlling question involved in this appeal is the character and effect of this judgment as subsequently modified, which we will discuss later.

In July, 1907, appellant, contending, as he does here, that the judgment of July 3, 1906, was, in effect, one of nonsuit, brought a second action, setting forth and seeking to recover for the same injury as in his former action. Respondent answered, contending, among other things, that the judgment of July 3d was a final judgment upon the merits, and was final and conclusive as to the cause of action set forth in the second complaint. Appellant's reply contested this issue, and thereupon appellant moved the court to correct and modify the judgment of July 3, 1906, which motion was in some respects granted, and on June 8, 1907, the court made and entered its judgment, which, omitting some of its formal parts, is as follows: 'Whereupon plaintiff closed his case, and the defendant, by its attorneys, moved the court for a judgment in its favor upon the grounds that plaintiff failed to establish that the defendant had been negligent as alleged in his complaint, or been negligent at all, or that plaintiff's injuries were the consequence of its negligence. Whereupon, after argument of counsel, and it appearing to the court that plaintiff's evidence was insufficient to establish negligence on behalf of the defendant, as alleged in his complaint or establish any negligence which would entitle him to a verdict and judgment as prayed for in his complaint, the court grants said motion and directs that judgment be entered in favor of the defendant and against the plaintiff. Wherefore, by reason of the facts aforesaid, and upon motion of the attorneys for defendant, it is by the court ordered, adjudged, and decreed that plaintiff take nothing by reason of his complaint, and that the aboveentitled action be, and the same is hereby, dismissed, and that the defendant have and recover of and from the plaintiff its costs and disbursements herein to be taxed. To which order and judgment plaintiff excepts, and exception is allowed. Done in open court this 8th day of June, 1907.' At the conclusion of the second trial, respondent, contending that this judgment was res adjudicata, moved for judgment. Appellant then asked leave to amend his reply by alleging the judgment to be one of nonsuit, and not upon the merits, which amendment was granted. He then offered to prove, by the judge who tried the former case, by the stenographer who reported it, and by the entry in the court's minutes on the day of the first trial, that the motion granted by the court was one for nonsuit. These offers being denied, exception was allowed, and the court thereupon dismissed the action, holding the former judgment was res adjudicata, and appellant, taking his exception, brings the case here, contending these various rulings of the trial court to be error.

We will first consider the character of the judgment and its effect. The term 'judgment' has been variously defined; but without specifically referring to these definitions, it may be said to be the determination of the court upon the issue presented by the pleadings, which ascertains and fixes absolutely and finally the rights of the parties in the particular suit in relation to the subject-matter in litigation, and puts an end to the suit by specifically granting or denying the remedy sought in the action. 11 Enc. Pl. & Pr. pp. 820-829. It is defined in our Code to be '* * * the final determination of the rights of the parties in the action.' Ballinger's Ann. Codes & St. § 5080 (Pierce's Code, § 719). 'Nonsuit' is the name of a judgment rendered against a plaintiff in a legal proceeding upon his inability to maintain his cause in court, or when he refuses or neglects...