Roche v. McDonald

• Citation: 158 Wash. 446,291 P. 476
• Decision Date: 11 September 1930
• Docket Number: 22291.
• Parties: ROCHE v. McDONALD.
• Court: United States State Supreme Court of Washington

291 P. 476

158 Wash. 446

ROCHE v. McDONALD.

No. 22291.

Supreme Court of Washington

September 11, 1930

Department 2.

Appeal from Superior Court, Spokane County; Chas. H. Leary, Judge.

Action by John H. Roche against Maude S. McDonald, as executrix of the last will and testament of D. K. McDonald, deceased. From a judgment for plaintiff, defendant appeals.

Affirmed.

Graves, Kizer & Graves, of Spokane, for appellant.

R. L Edmiston and John H. Roche, both of Spokane, for respondent.

FULLERTON J.

D. K McDonald died testate in the county of Spokane on May 12 1928. On October 19, 1928, letters testamentary were issued to his widow, Maude S. McDonald, as the executrix of his estate. In November, 1928, the respondent, John H. Roche presented to the executrix a claim against the estate, founded upon a judgment entered against McDonald in his lifetime in the circuit court of the state of Oregon for the county of Marion, for the sum of $18,298.98. The executrix rejected the claim, whereupon the respondent brought the present action to establish the judgment as a valid claim against her testator's estate. Judgment went in favor of the respondent, and it is from this judgment that the present appeal is prosecuted.

To an understanding of the controversy, something of the history of the transaction out of which it arises must be stated. On June 24, 1918, one L. H. Dart recovered a judgment in the superior court for Spokane county against D. K. McDonald and his wife, the present executrix, for the sum of $12,750, on a cause of action sounding in tort; the contention being that the McDonalds had by fraud and deceit induced Dart to purchase certain worthless stock in a corporation. The judgment ran against them separately, and the wife appealed from the judgment in so far as it affected her in her individual capacity, and this court, on the appeal, reversed and set aside the judgment as to her. Dart v. McDonald, 107 Wash. 537, 182 P. 628. Dart was unable to enforce the judgment as against the remaining judgment debtor, and on February 27, 1924, assigned the judgment to the respondent, Roche. McDonald was at that time temporarily in the state of Oregon, engaged in the promotion of some real estate enterprise. Roche instituted an action against him in that state and obtained the judgment hereinbefore mentioned. The judgment was entered on personal service had upon McDonald, and after he had appeared in the action and demurred to the complaint; he having failed to plead further after his demurrer was overruled.

McDonald returned to this state while the action was pending in the Oregon court, and, shortly after the judgment had been entered therein, Roche brought an action in this state against him, basing his cause of action on the Oregon judgment. McDonald defended against the action and was successful in the trial court, and successful in this court on an appeal from the judgment. Roche v. McDonald, 136 Wash. 322, 239 P. 1015, 44 A. L. R. 444. On certiorari to the Supreme Court of the United States, however, that court reversed the judgment of this court, holding that we did not give full faith and credit to the judgment of the Oregon court, and remanded the cause to this court for further proceedings not inconsistent with its opinion. Roche v. McDonald, 275 U.S. 449, 48 S.Ct. 142, 72 L.Ed. 365, 53 A. L. R. 1141. When the mandate of the Supreme Court of the United States reached this court, we, in obedience to the mandate, reversed the judgment of the trial court and remanded the cause to that court for further proceedings.

After the remittitur of this court reached the trial court, McDonald amended his answer to the original complaint by setting up new and additional defenses, but, before the issues were finally joined in the cause, McDonald died.

The pending action, while it was suspended by the death of McDonald, was not abated or barred by his death. Rem. Comp. Stat. § 193. It was the privilege of the plaintiff to substitute the executrix of his estate as defendant in his stead and proceed with the further prosecution of the action. He did not, however, avail himself of this remedy. On the contrary, after the death of McDonald he took no further notice of the pending action, but presented the judgment, which furnished the foundation of the pending action, to the executrix as a claim against her testator's estate, and on its rejection began an independent action to enforce its allowance.

In his complaint, the respondent set out the rendition of the judgment on which he relied for a recovery, set out its presentation to the executrix, as a claim against her testator's estate, and its rejection by the executrix, making no reference to the pending action. The executrix answered, and, after making certain admissions and denials, set up as a first affirmative defense the facts giving rise to the judgment sued upon, showing that the judgment rendered in this state on which the judgment in the Oregon court was founded originated in tort, and alleged that it did not survive the death of McDonald. For a second affirmative defense, she alleged that the plaintiff, in bringing an action in the state of Oregon, was guilty of a fraud upon the laws of this state, in that the sole purpose of the action was to circumvent its statutes which limit the life of a judgment rendered by any of its courts to six years. Issue was taken on the allegations of the affirmative answers, and a trial was had with the result above stated.

On her appeal, the executrix makes four principal contentions, which can best be stated in the language of her counsel. They are the following:

'(1) An action against McDonald on the Oregon judgment was pending in the superior court for Spokane county at the time of his death. That being the case, an independent claim upon that judgment could not be presented to the executrix, and on its rejection an independent action be brought thereon. Under section 1486, Rem. Comp. Stat., the claim in suit could only be enforced by substituting McDonald's executrix as defendant in the action pending against him at the time of his death.

'(2) The cause of action upon which the Oregon judgment rests is in tort, which would not survive D. K. McDonald's death. The judgment is not a new and independent obligation, but the old obligation in a new form, and so the judgment no more survives as a claim against the estate than would the cause of action had it not been reduced to judgment.

'(3) Roche and McDonald were both citizens and residents of Washington, and had been for many years prior to the recovery of the Oregon judgment. Every citizen of a State owes obedience to and is entitled to the protection of its laws. Roche's conduct in suing and recovering judgment on the Washington judgment in Oregon, and in thereafter demanding enforcement of the Oregon judgment in Washington, was an evasion of the Washington statute which limits the life of a judgment to six years, to the injury of a fellow citizen, who was entitled to the protection of that statute. A court of equity will not, under such circumstances, permit enforcement of the judgment.

'(4) Roche's claim is stale. Doubtless if the Oregon judgment be given effect, there is no legal bar to the claim. But the doctrine of stale claim is applicable to such a case as this, and Roche's claim, which had its origin more than eleven years ago, much more than the longest statutory limitation period permitted by the Washington law, is undoubtedly stale.'

The first of the objections, as noted in the objection itself, is founded upon the statutes. As hereinbefore stated, an action in this state does not abate by the death of the defendant if the cause of action survives, but may be continued against his representatives or successors in interest, if application be made therefor within one year from the time of the death. Rem. Comp. Stat. § 193. The Probate Code in force prior to the adoption of the new Probate Code of 1917 added to the general statute cited the requirement that a claim in suit at the time of the death of a defendant should be presented to the executor or administrator as an ordinary claim was required to be presented, and further provided that no recovery could be had in the pending action unless proof be made of the presentment. Code of 1881, § 1476; Ballinger's Ann. Codes and Statutes, § 6237. The Code (Probate Code) of 1917 (Laws 1917, p. 642), however, made a somewhat radical change with respect to actions pending. While it provides (Rem. Comp. Stat. § 1477) that all claims against an estate shall be presented to the executor or administrator, and provides ( Id. § 1484) that 'no holder of any claim against an estate shall maintain an action thereon, unless the claim shall have been first presented as herein provided,' it further provides ( Id. § 1486):

'If any action be pending against the testator or intestate at the time of his death, the plaintiff shall within ninety days after first publication of notice to creditors, serve on the executor or administrator a motion to have such executor or administrator, as such, substituted as defendant in such action, and, upon the hearing of such motion, such executor or administrator shall be so substituted, unless, at or prior to such hearing, the claim of plaintiff, together with costs, be allowed by the executor or administrator and the court. After the substitution of such executor or administrator, the court shall proceed to hear and determine the action as in other civil cases.'

It is the argument of the executrix that this statute provides an exclusive remedy in situations such as is here presented that the remedy of the common law is abolished; and that now a claimant whose claim is in suit at the time of...