State ex rel. Schmidt v. Superior Court for Thurston County
| Citation | 62 Wash. 556,114 P. 427 |
| Court | United States State Supreme Court of Washington |
| Decision Date | 23 March 1911 |
| Parties | STATE ex rel. SCHMIDT et al. v. SUPERIOR COURT FOR THURSTON COUNTY et al. |
Department 1. Application for writ of review by the State, on the relation of Leopold F. Schmidt and wife and the Tumwater Power & Water Company, against the Superior Court for Thurston County and M. L. Clifford, Presiding Judge thereof. Judgments affirmed.
See also, 56 Wash. 287, 105 P. 815.
G. C. Israel, M. L. Pipes, Frank C. Owings, and George H. Funk, for plaintiffs.
Troy & Sturdevant and A. J. Falknor, for respondents.
On the 10th day of July, 1907, the Olympia Light & Power Company, a public service corporation operating an electric street railway in the city of Olympia and in the town of Tumwater and between such points, and operating an electric light plant at such points, commenced two condemnation proceedings one against the relators Schmidt and the other against the Olympia Brewing Company. The purpose of these actions was to condemn and appropriate certain water rights in the Des Chutes river. On October 29, 1907, leave of court having been obtained, the relator the Tumwater Power & Water Company filed its complaint in intervention in both proceedings. It alleged that on July 9, 1907, it had a franchise from the town of Tumwater granting it the use of the streets and alleys for laying mains and supplying the inhabitants of the town with electricity for lighting, heating, and power purposes, and also for supplying them with water; that it had an option to purchase the water rights of the defendants Schmidt, and that it had leased the water rights of the defendant the Olympia Brewing Company, the same being the water rights sought to be appropriated; and that, when the actions were commenced, it was proceeding diligently toward the utilization and application of the water to the privileges embraced in its franchise. The plaintiff interposed separate demurrers to the intervener's complaints, based upon two grounds: (1) That the intervener had no legal capacity to intervene; and (2) that its complaint does not state facts sufficient to constitute a cause of action, defense, or counterclaim. The demurrers were sustained, and the order entered thereon, omitting the title is as follows: The defendants in the condemnation cases pleaded affirmatively substantially the same matter pleaded by the intervener. Separate demurrers were sustained to the new matter in each of the answers. The orders sustaining the several demurrers were entered on the 4th day of May, 1908. The intervener appealed from the orders of dismissal, and the appeals were dismissed. Olympia Light & Power Co. v. Tumwater Power Co., 55 Wash. 392, 104 P. 778. The appeals were dismissed on the ground that the intervener's remedy was by writ of review, and not by appeal. Writs of review were subsequently denied because the applications were not seasonably made. Same, 56 Wash. 287, 105 P. 815. On February 28, 1910, the motions of the defendants for leave to file amended answers were denied. On the 2d day of March, 1910, both cases proceeded to trial. At the close of the plaintiff's evidence, the relator corporation offered evidence to prove a state of facts substantially the same as those alleged in its complaint in intervention to which the demurrers had been sustained. The evidence was rejected. on the ground that the matters to which it related were res judicata. Separate orders were entered on March 3, 1910, declaring that the contemplated use for which the easements were sought to be appropriated by the plaintiff was a public use, and that the public interest requires the prosecution of the enterprise, and directing that a jury be impaneled to ascertain and determine the compensation to be made to the owners of the easements. The relators have applied for a writ of review in both cases, and they will be considered together.
The relators make two principal contentions: (1) That the trial court erred in refusing to hear the evidence of the relator Tumwater Power & Water Company; and (2) that the court abused its discretion in refusing to permit the defendants to file amended answers. There was no error in rejecting the proffered evidence of the Tumwater Power & Water Company. A demurrer had been sustained to the complaint, alleging the same facts, and the complaint had been dismissed. It sought to review the order of dismissal, first, by appeal, and, second, by certiorari. Both remedies proved unavailing. The judgment is therefore final and conclusive. The order of dismissal put it out of the case. 'Judgment upon a demurrer or objection to a complaint that it does not state facts sufficient to constitute a cause of action when final determines the merits of the cause as between the parties and their privies.' Plant v. Carpenter, 19 Wash. 621, 53 P. 1107. 'A final judgment rendered on demurrer which goes to the ground of recovery is a judgment on the merits and is res judicata.' Brechlin v. Night Hawk Mining Co., 49 Wash. 198, 94 P. 928, 126 Am. St. Rep. 863. Where a demurrer to the merits of the petition is sustained and a judgment is entered in favor of the demurrant, such judgment, unless reversed, is as final and conclusive between the parties as if founded upon the verdict of a jury. The same rule applies where the demurrer contains several grounds, one of which goes to the merits of the case as presented in the pleading demurred to. Merrill v. Board of Commissioners, 7 Kan. App. 717, 52 P. 109. A general judgment or decree of dismissal, entered upon a demurrer based upon several grounds some of which touch the merits of the...
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