Rousseau v. Rosche

• Decision Date: 26 August 1930
• Docket Number: 22437.
• Citation: 290 P. 806,158 Wash. 310
• Parties: ROUSSEAU v. ROSCHE.
• Court: Washington Supreme Court

290 P. 806

158 Wash. 310

ROUSSEAU v. ROSCHE.

No. 22437.

Supreme Court of Washington

August 26, 1930

Department 1.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by Stella C. Rousseau, individually and as administratrix of the estate of Orville M. Rousseau, deceased, against Frank Rosche and others. Judgment for plaintiff was reversed by the Supreme Court (153 Wash. 54, 279 P. 80), and, after receipt of the remittitur, upon motion of counsel for defendants, the court entered a judgment of dismissal, from which plaintiff appeals.

Reversed and remanded, with directions.

Edwin H. Flick and A. R. Rutherford, both of Seattle, for appellant.

Hayden Langhorne & Metzger, of Tacoma, for respondent.

PARKER J.

This is an appeal by Mrs. Rousseau, individually and as administratrix of the estate of her deceased husband, from a judgment of the superior court for King county dismissing her action in that court, wherein she seeks recovery against the defendant Rosche upon a claimed obligation growing out of his partnership relation with her deceased husband. The theory upon which the judgment of dismissal was rested by the trial judge and upon which it is sought to be sustained here, is that it was rendered in obedience to the mandate of this court upon reversal of a former judgment of the superior court rendered in the action, which judgment awarded to Mrs Rousseau recovery against Rosche and other defendants.

A former trial of the cause upon the merits in the superior court, sitting with a jury, resulted in verdict and judgment awarding to Mrs. Rousseau recovery against all of the defendants in the sum of $12,500. From that judgment all of the defendants appealed to this court. In due course that judgment was reversed by our decision reported in 153 Wash 54, 279 P. 80, because of trial errors and because of it being excessive in amount. The judgment of reversal, entered following that decision, in so far as need be here noticed, reads:

'This cause having been heretofore submitted to the Court, upon the transcript of the record of the Superior Court of King County, and upon the argument of counsel, and the court having fully considered the same, and being fully advised in the premises, it is now, on this 11th day of October, A. D. 1929, on motion of Hayden, Langhorne & Metzger, of counsel for appellants, considered, adjudged and decreed, that the judgment of the said superior court be, and the same is, hereby reversed. * * * And it is further ordered, that this cause be remitted to the said Superior Court for further proceedings. * * *'

Upon the going down of the remittitur, counsel for the defendants moved the superior court for final judgment of dismissal of the action. Counsel for Mrs. Rousseau tendered and asked leave to file her third amended complaint, the former trial being upon her second amended complaint, wherein she sought recovery against the defendant Rosche alone upon substantially the same ground she had sought recovery against him upon the former trial. Rosche's motion for final judgment upon the remittitur and Mrs. Rouseau's motion for leave to file her tendered third amended complaint being submitted to the court for disposition, the court denied her leave to file her tendered third amended complaint, and entered judgment finally disposing of the action by judgment which, in so far as need be here noticed, reads as follows:

'Order, adjudge and decree, as follows:

'1. The aforesaid judgment of this Court entered herein October 6, 1928, be and the same is hereby vacated, set aside and wholly annulled.

'2. That the plaintiff, individually and as administratrix of the estate of Orville M. Rousseau, deceased, take nothing by reason of her complaint herein or any amendment thereof, but that the same and this action based thereon be and they are hereby dismissed. * * *'

It is from this judgment that this appeal is prosecuted.

It is contended in behalf of Rosche that the judgment was rendered in conformity with the reversal decision and judgment of this court, and that therefore it should not be dismissed upon this appeal. We cannot agree with this contention. The reversal decision and judgment, it is true, did not, in terms, award Mrs. Rousseau a new trial, but it did not finally dispose of the cause upon the merits or direct any final judgment to be rendered by the superior court. It only directed 'that this cause be remitted to the superior court for further proceedings.' The then condition of the case in the superior court was substantially the same as that drawn in question in this court in Richardson v. Carbon Hill Coal Co., 18 Wash. 368, 51 P. 402, 403, 1046 wherein Judge Dunbar, speaking for the court, said: 'The...