Michel v. White

• Decision Date: 29 July 1911
• Citation: 116 P. 860,64 Wash. 341
• Parties: MICHEL et ux. v. WHITE et al.
• Court: Washington Supreme Court

116 P. 860

64 Wash. 341

MICHEL et ux. v. WHITE et al.

Supreme Court of Washington

July 29, 1911

Department 2. Appeal from Superior Court, Whitman County; Henry L Kennan, Judge.

Action by J. I. Michel and wife against J. A. White and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

Frederick W. Dewart, for appellants.

J. N Pickrell, for respondents.

MORRIS, J.

This action is to set aside a conveyance of real property upon the ground of fraud, and was dismissed in the lower court upon the ground that a former judgment between the same parties upon the same cause of action, was res adjudicata. The former judgment recites the appearances of the respective parties and proceeds as follows: 'And the cause having proceeded to trial, and the plaintiffs having introduced their testimony and having rested, and the defendants and each of them having then moved the court for a judgment dismissing this action on the ground that the plaintiffs failed to prove any material fact essential for their recovery in this action, and the court having heard the argument of counsel on said motion and being fully advised in the premises, finds that the plaintiffs failed to prove any of the material facts necessary for them to prove for recovery under the issues in this case against any of the defendants. Wherefore, it is ordered, adjudged, and decreed that this case be, and the same is hereby dismissed. And it is further ordered that the defendants recover from the plaintiffs judgment for their costs taxed at $115.50, and that execution issue therefor.'

The only question submitted by the appeal is the character of the above judgment, appellants contending it is one of nonsuit, while respondents contend it is upon the merits, and a bar. In our opinion, the judgment is one of final dismissal, and a bar to the prosecution of the same cause of action between the same parties. The cause of action pleaded was an equitable one, and when the court found 'that the plaintiffs failed to prove any of the material facts necessary for them to prove for recovery under the issues,' it was a finding that there was no equity in the bill, and called for a dismissal of the cause. In all actions of equitable cognizance two things are considered by the court in its findings and decree: First, is plaintiff entitled to equitable relief; second, if so, an adjudication of what the court considers equity? When the court finds there is no equity in plaintiffs' showing, there is nothing further to be done, and the cause is as effectually at an end as any cause ever can be; and its dismissal upon that ground, unless the court in some way restricts its effect, is final and determinative of that subject-matter, and operates as a bar. Averill Machinery Co. v. Allbritton, 51 Wash. 32, 97 P. 1082; State ex rel. Schmidt v. Superior Court, 114 P. 427.

This court has frequently said that a motion for a nonsuit had no place in equity causes, and whenever we have been called upon to review one, we have treated it as a motion to dismiss....