State v. Glover

• Decision Date: 14 December 1931
• Docket Number: 23266.
• Citation: 165 Wash. 567,5 P.2d 1014
• Parties: STATE ex rel. PAINE et al. v. GLOVER, Auditor, et al.
• Court: Washington Supreme Court

5 P.2d 1014

165 Wash. 567

STATE ex rel. PAINE et al. v. GLOVER, Auditor, et al.

No. 23266.

Supreme Court of Washington

December 14, 1931

Department 2.

Appeal from Superior Court, Spokane County; R. M. Webster, Judge.

Petition by the State, on the relation of Frank C. Paine and another for a writ of mandate against F. J. Glover and another, to compel defendants, as auditor and treasurer, respectively, of Spokane County, to issue and pay a county warrant in favor of relators. From a judgment dismissing the proceeding, relators appeal.

Reversed with instructions.

Tustin & Chandler, of Spokane, for appellants.

Chas W. Greenough and A. O. Colburn, both of Spokane, for respondents.

BEALS J.

Relators filed their petition for a writ of mandate directed to the auditor and the treasurer of Spokane county, requiring them respectively, to issue and pay a county warrant in favor of relators in the sum of $3,378.36. In their petition, relators allege, after naming defendants and their respective county offices, that February 7, 1929, relators recovered judgment against Spokane county in the amount above set forth in an action in which relators were plaintiffs, and Spokane county, together with the state of Washington and its commissioner of public lands, were defendants; that on appeal to this court the judgment rendered by the superior court in relators' favor was affirmed; that the action above referred to was instituted by the plaintiffs for the purpose of requiring the state of Washington to pay assessments which had been levied against state land included in a drainage district and assessed for benefits therefor, plaintiffs' cause of action being based upon the fact that the then treasurer of Spokane county had issued to the plaintiffs a certificate of delinquency for certain assessments levied by the drainage district and unpaid, the certificate bearing the statutory guarantee of the county to the effect that if, because of any irregularity of the taxing officers, the certificate was void, the county would repay to the holder the amount paid therefor, with interest; that in the prior action judgment was rendered in favor of the state of Washington and against the county of Spokane for the amount paid the county for the certificate, with interest; and that thereafter the relators in this proceeding satisfied the judgment against the county and presented to the defendants in this proceeding a certified copy of the docket showing the entry of the judgment and the satisfaction thereof, and demanded the issuance of a warrant in favor of relators. Relators further allege that the defendant county auditor refused to issue the warrant, and that the defendant county treasurer stated that, if such a warrant were issued, he would refuse to pay it. An order for an alternative writ of mandate having been entered and an alternative writ issued, defendants made their return thereto and their answer to relators' petition, admitting certain of relators' allegations, denying others, and pleading affirmatively that the money paid by relators for the certificate of delinquency referred to in relators' petition was by the treasurer of Spokane county deposited in the interest and bond redemption fund of the drainage district in connection with which the certificate of delinquency was issued; that the bonds issued by the district were on deposit with the county treasurer for collection, and 'were in the name of and held by' the relators in this action; and that the county treasurer paid to the relators the money paid by them to the county in purchasing the certificate of delinquency; and that relators received back on account of their bonds all of the money which they had paid to the county treasurer for the certificate of delinquency. Paragraph two of the affirmative defense contained in the answer reads as follows: 'Defendants further allege that the consent judgment taken in said Thurston County case was agreed to by counsel for Spokane County without consultation with the county treasurer or county auditor above named and without any knowledge of the facts as alleged in paragraph I of this affirmative answer; and that plaintiffs herein did not inform defendants' counsel in that case of all the facts as herein alleged or any special circumstances that estopped plaintiffs herein from taking advantage of the statutory warranty in said certificate of delinquency; and that neither said treasurer nor said auditor consented to or knew anything about said consent judgment.'

Relators demurred to the answer and return of the defendants upon the ground that the same failed to state facts sufficient to constitute any defense to the action. After issues of law were joined, as hereinabove stated, the parties entered into the following stipulation, which was filed in the cause and is now Before us:

'It is hereby stipulated between counsel for plaintiffs and counsel for defendants in the above entitled action that for all purposes in the superior court and for all purposes on appeal, the superior court and the supreme court of the state of Washington may consider the following facts in relation to defendants' answer and return as fully and to the same extent as if set forth therein.

'1. That the prayer of the complaint, which was omitted from the copy of the complaint set forth in paragraph IV of said answer and return was as follows:

"1. That it be decreed by this court that said assessments evidenced by the plaintiffs' certificate of delinquency constitute a valid and first lien upon the above described land and each and every part thereof, and that said lien be enforced;

"2. That in case enforcement of said lien can not otherwise be had, than that a writ of mandate issue from this court to the defendant Clark V. Savidge, as commissioner of public lands of the state of Washington, requiring him to certify the amount of said assessments, with interest, to the state auditor of the state of Washington for certification to the legislature of the state of Washington, for payment as provided by law.

"3. That in the event this court should decide that said assessments evidenced by said certificate of delinquency do not constitute a valid and enforceable lien against said land, then and in that event, that plaintiffs have judgment against the defendant the county of Spokane, state of Washington, for the repayment to the plaintiffs on account of the purchase of said certificate of delinquency in the sum of Three Thousand Two Dollars and Fifty-five Cents ($3,002.55) with interest, and

that in the event that any part of said certificate of delinquency be determined not to constitute a valid and enforceable lien against said land, then that plaintiffs have judgment against said county for the amount included in said certificate so declared to be invalid.

"4. For plaintiffs' costs and disbursements in this action and for such other and further relief as to the court may seem equitable in the premises.'

'2. That the allegation of payment to the plaintiffs as set forth in paragraph I of the affirmative defense in said answer and return means that such payment is alleged to have been made to plaintiffs on or shortly after the receipt of the money by the county treasurer for the certificate of delinquency, and prior to the commencement of the case of Frank C. Paine and Conner Malott vs. The State of Washington and the County of Spokane, in the superior court for Thurston county.

'3. That by use of the term 'consent judgment' in paragraph II of defendants' affirmative defense, it is meant that counsel for Spokane county in the suit of Frank C. Paine and Conner Malott vs. The State of Washington and the County of Spokane, in Thurston county, when the demurrer of the county was overruled, elected to stand on its demurrer and to that extent consented to the entry of the judgment against said county, and it is not meant thereby that the overruling of the county's demurrer was consented to by its counsel.'

Relators' demurrer to defendants' affirmative defense, as set forth in their answer and return, as amplified by the foregoing stipulation, was by the superior court overruled, and, relators having elected to stand upon their demurrer and having refused to plead further by way of a reply, judgment was entered dismissing the proceeding, from which judgment relators appeal.

Respondents argue that the judgment in the case of Paine v. State, 156 Wash. 31, 286 P. 89, is not res judicata of the issue raised by respondents' answer in this case; that the judgment therein rendered was by consent and, for that reason, falls within a recognized exception to the general doctrine of res judicata; and that an admission by a municipal officer that a certain fact exists, when it does not exist, does not estop the municipal corporation from later showing the true situation; and, finally, that appellants do not come into court with clean hands.

In support of their first proposition, respondents argue that the facts constituting the defense which they plead did not exist at the time of the entry of the judgment in the former action, and for that reason could not have been made part of the proceedings in that action and do not fall within the scope of the judgment therein rendered. Respondents contend that the defense set up in their answer was not available to them in the prior proceeding because the same did not come into existence until after it had been finally determined that the certificate of delinquency, which the county had sold to...