State v. Ronald

• Decision Date: 21 April 1925
• Docket Number: 19227.
• Citation: 134 Wash. 152,235 P. 21
• Parties: STATE ex rel. HAYASHI v. RONALD, Superior Court Judge.
• Court: Washington Supreme Court

235 P. 21

134 Wash. 152

STATE ex rel. HAYASHI v. RONALD, Superior Court Judge.

No. 19227.

Supreme Court of Washington

April 21, 1925

Suit for mandamus by the State, on the relation of Bert Hayashi against J. T. Ronald, Judge of the Superior Court of Washington for King County. Writ granted.

Charles E. Congleton, of Seattle, for petitioner.

Bausman Oldham & Eggerman and Arthur E. Simon, all of Seattle, for defendant.

MITCHELL J.

W. G McAvoy commenced this action in replevin in the superior court of King county against Bert Hayashi to recover possession of an automobile or the sum of $1,500 the alleged value, if delivery of the car could not be had. The complaint alleges that, while plaintiff was the owner and in possession of the automobile, he delivered it to the defendant upon the false representation and promise that he would sell the automobile for the plaintiff or return it to him immediately and that demand for possession of it had been made and refused. An amended and supplemental complaint alleges further that upon the commencement of the action the plaintiff obtained possession of the automobile by a writ of replevin executed by the sheriff, after which the automobile was again taken possession of wrongfully by parties acting by, for, through, or under the defendant. The defendant's answer consisted of general denials and prayed that the action be dismissed and for costs. By written interrogatories propounded by the defendant and answered by the plaintiff, after issue joined, it was disclosed that the plaintiff claims to have originally acquired title and possession of the automobile on or about June 30, 1921, from the Mikado Auto Company, Inc., through George Fujimoto, an officer of the corporation, by oral agreement. Thereupon, on a showing that George Fujimoto was a material and necessary witness for the defendant in the trial of the action and that the witness was and would continue to be absent from the state the defendant made an application to the superior court to settle written interrogatories, and for a commission to take the deposition of George Fujimoto. It was proposed to ask the witness, among other questions, if on or about June 30, 1921, as an officer of the Mikado Auto Company, Inc., or otherwise, he conveyed the title or delivered possession of the automobile to the plaintiff McAvoy.

The application was denied by the court for the reason stated that 'the interrogatories each and all, were and are immaterial and irrelevant to the issues of this cause of action.' Upon the entry of that order the defendant made the present petition to this court for a writ of mandamus. To an alternative writ, the defendant here has moved to quash it for the reason that the petition for the writ does not state facts sufficient to authorize the issuance of a writ or the granting of any other relief to the petitioner. The plaintiff in the superior court filed written interrogatories which were answered by the defendant therein, which are called to our attention here. They need not be set out for the reason that if, under the issues made by the pleadings in the superior court, it be the law in this state that the defendant can prove ownership or the right of possession in either himself or a third party then the order complained of is erroneous.

If, as appears to be the case, the plaintiff in the trial court should testify in support of his case that he was the owner and in possession of the automobile at the time and as alleged because of an oral agreement with the Mikado Auto Company, Inc., by its officer George Fujimoto, it will be highly proper that the other party to the action be allowed to contradict that testimony by the testimony of Fujimoto, whose testimony cannot be had except by deposition.

In 23 R. C. L. 'Replevin,' § 102, it is stated:

'Where the code system of pleading is followed the general rule prevails that a general denial in an action of replevin puts in issue every fact stated in the complaint necessary to sustain the plaintiff's cause of action, and that every defense, general or special, meritorious or technical, may be made under a general denial.'

In section 103 of the same work it is said:

'It is usually held that the general denial in an action in replevin puts in issue not only the plaintiff's right of possession, but his title to the property replevied. * * * Any evidence tending to disprove the plaintiff's right of possession at the time the suit was begun is competent under a general denial, as for example that the right of possession is in the defendant or a third person.'

See, also, 20 Ann. Cas. note, p. 298; Schulenberg v. Harriman, 21 Wall. 44, 22 L.Ed. 551; Aultman, etc., Co. v. O'Dowd, 73 Minn. 58, 75 N.W. 756, 72 Am. St. Rep. 603.

This court has announced the same rule. In the case of Chamberlin v. Winn, 1 Wash. 501, 20 P. 780, a case wherein plaintiff alleged that by threats and compulsion she had been forced to deliver possession of property to the defendant, it was said:

'In an action like this, brought to recover possession of specific personal property, the defendant may, under the general denial, prove ownership or the right of possession in a third person. Pom. Rem. (2d Ed.) § 678; Caldwell v. Bruggerman, 4 Minn. 270 (Gil. 190); Woodworth v. Knowlton, 22 Cal. 164; Schulenberg v. Harriman, 21 Wall. 44; Sparks v. Heritage, 45 Ind. 66; Timp v. Dockham, 32 Wis. 146; Rockwell v. Saunders, 19 Barb. 473.'

In the case of Harvey v. Ivory, 35 Wash 397, 77 P. 725, referring to...