State v. Blake

• Decision Date: 31 May 1919
• Docket Number: 15279.
• Citation: 181 P. 685,107 Wash. 294
• Parties: STATE ex rel. BAEDER v. BLAKE, Judge of Superior Court.
• Court: Washington Supreme Court

181 P. 685

107 Wash. 294

STATE ex rel. BAEDER v. BLAKE, Judge of Superior Court.

No. 15279.

Supreme Court of Washington

May 31, 1919

Department 1.

Writ of review by the State of Washington, on the relation of J. J Baeder, against the Honorable Bruce Blake, Judge of the Superior Court of the State of Washington for Spokane County to review an order abating action as against the estate of a deceased defendant. Order or judgment affirmed.

F. W. Girand and Fred M. Williams, both of Spokane, for relator.

Burcham & Blair, of Spokane, for respondent.

MAIN J.

The purpose of this action was to recover damages for fraud and deceit. After the issues were framed, one of the defendants John F. Green died. Upon application of the plaintiff, the administratrix of the deceased's estate was substituted as a party defendant. Thereafter the administratrix moved the court to vacate the order of substitution and enter an order abating the action as against the estate of the intestate. After a hearing upon the matter, the court entered the order of abatement as prayed for. The cause is here to review this order or judgment.

A brief statement of the facts is sufficient to an understanding of the question presented. The complaint charges a conspiracy to defraud arising out of these facts: Certain of the defendants, not including the intestate, caused a corporation, known as the Spokane-Stanford Land Company, to be organized under the laws of the state of Washington. After this corporation was organized, there was assigned to it an option for the purchase of a large tract of land in Santa Clara county, Cal. The parties promoting the corporation contemplated platting the property referred to into smaller tracts and marketing the same, hoping thereby to make a profit on the transaction. The capital stock of the company was of the par value of $100 per share. John F. Green, during his lifetime, subscribed for a certain number of shares agreeing to pay, according to the subscription contract, the par value thereof, but by arrangement with the promoters of the corporation paid only $60 per share. This was his part of the alleged fraudulent transaction, and by reason of this fact it is now sought to hold his estate liable at the suit of a stockholder who paid par value for his stock. The venture was unsuccessful, and the parties investing in the stock did not realize anything upon the enterprise, but sustained a loss.

The question presented for determination is whether the action against Green would survive against his estate.

Consideration will first be given to the statutes of this state upon which reliance seems to be placed. Section 193, Rem. Code, provides, among other things, that no action shall abate by the death of a party if the cause of action survive or continue. This statute does nothing more than provide that, if the cause of action survive, then an action which may be pending does not abate by the death of the party. It does define, or attempt to define, what causes of action survive. Section 967, Rem. Code, provides:

'All other causes of action (than those enumerated in section 183, supra) by one person against another, whether arising on contract or otherwise, survive to the personal representatives of the former and against the personal representatives of the latter. Where the cause of action survives, as herein provided, the executors or administrators may maintain an action at law thereon against the party against whom the cause of action accrued, or after his death, against his personal representatives.'

This statute has been construed as referring only to causes of action which had already survived, and that it did not attempt to announce what causes of action would survive. Slauson v. Schwabacher Bros. & Co., 4 Wash. 783, 31 P. 329, 31 Am. St. Rep. 948; Jones v. Miller, 35 Wash. 499, 77 P. 811.

In the case last cited it was said, referring to a previous decision (the Slauson Case):

'There we said that the Legislature, when it enacted this section, was legislating with reference to causes of action which had already survived, and was not attempting to announce what causes of action should survive; and, further, that if the contrary contention were correct, there was no limit whatever to causes which would survive the death of the person injured; 'for causes of action for assault, slander, and for other purely personal causes would survive; and this would be so wide a departure from the established rule that the Legislature would hardly be deemed to have intended it without plainly expressing such

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