State v. Gloyd

• Decision Date: 15 February 1896
• Citation: 14 Wash. 5,44 P. 103
• Parties: STATE EX REL. LEDGER PUB. CO. v. GLOYD, COUNTY AUDITOR, ET AL.
• Court: Washington Supreme Court

44 P. 103

14 Wash. 5

STATE EX REL. LEDGER PUB. CO. v. GLOYD, COUNTY AUDITOR, ET AL.

Supreme Court of Washington

February 15, 1896

Appeal from superior court, Pierce county; Emmett N. Parker, Judge.

Proceeding on the relation of the Ledger Publishing Company against Frank H. Gloyd, county auditor, and John B. Hedges, county treasurer, of Pierce county, to compel the issuance and payment of warrants in satisfaction of a judgment in favor of relator against said county. From a judgment of nonsuit relator appeals. Reversed.

Doolittle & Fogg and E. M. Hayden, for appellant.

Coiner & Shackleford, for respondents.

GORDON J.

On the 8th of December, 1894, the appellant recovered a judgment against Pierce county amounting to $3,904.02. Subsequently it instituted this proceeding to compel the auditor of said county to issue warrants in payment and satisfaction of said judgment, and also to compel the treasurer to pay them. To the alternative writ which was issued the treasurer and auditor made answer and return, in which, among other things, it was alleged "that at the time the judgment mentioned, *** in favor of the Ledger Publishing Company, was entered, and at the time the indebtedness was attempted to be incurred, upon which indebtedness said judgment was based, the county of Pierce was indebted in an amount greater than one and one-half per cent. of its taxable property, as shown by its last assessment rolls, after deducting from such indebtedness moneys on hand in the treasury belonging to the general fund and all unpaid taxes then levied, and not delinquent," and "that three-fifths of the voters of Pierce county have never assented to the incurring of the indebtedness upon which said judgment was rendered." A demurrer to this answer and return was interposed by the appellant, which demurrer was sustained by the lower court, and thereupon the auditor issued said warrants. The treasurer (respondent here), having obtained leave of court, filed his amended answer and return, in which he denied that he had in his custody, as treasurer, sufficient moneys in the general fund of said county to pay the outstanding warrants drawn on said fund prior to the issuance of relator's warrants together with the warrants in question. His amended answer also contained an allegation that the indebtedness evidenced by relator's judgment had been incurred at a time when the county was beyond its constitutional limit of indebtedness, which latter allegation was precisely like the one contained in the original answer, to which a demurrer had been sustained. Upon the trial which followed, the appellant having rested, and a motion for nonsuit having been argued, the court granted said motion, and rendered judgment dismissing the proceeding. From said order and judgment relator prosecutes this appeal.

Counsel for the defendant, in their able brief, insist that the plea as to relator's judgment being based upon a debt attempted to be incurred by the county authorities at a time when the county was beyond the debt limit fixed by the constitution was and is a sufficient plea; but we think that the contention of the appellant that a judgment bars, not only every defense that was, as a matter of fact, raised, but every defense that might have been raised, must be upheld. That principle was declared by this court in Sayward v. Thayer, 9 Wash. 22, 36 P. 966, and 38 P. 137, and to the same effect may be cited Snell v. Campbell, 24 F. 885; Howard v. City of Huron (S. D.) 60 N.W. 807; U.S. v. New Orleans, 98 U.S. 395. But, beyond this, an inspection of the record shows that this question is not involved in the present case, inasmuch as no appeal was taken by the auditor or treasurer from the decision of the lower court which sustained a demurrer to this branch of the case; and, while it is true that the amended pleading contained a like allegation, no further ruling was made upon it, nor was any evidence offered under this allegation upon the trial.

2. Upon the trial the appellant endeavored to show that, of the...