State v. Superior Court of King County

• Decision Date: 18 June 1896
• Citation: 45 P. 670,14 Wash. 686
• Court: Washington Supreme Court
• Parties: STATE EX REL. PUGET SOUND NAT. BANK OF SEATTLE v. SUPERIOR COURT OF KING COUNTY ET AL.

45 P. 670

14 Wash. 686

STATE EX REL. PUGET SOUND NAT. BANK OF SEATTLE v. SUPERIOR COURT OF KING COUNTY ET AL.

Supreme Court of Washington

June 18, 1896

Petition by the Puget Sound National Bank of Seattle for a writ of mandamus to compel Richard Osborn, judge of the superior court of King county, to proceed with an action. Granted.

Dunbar J., dissenting.

Carr & Preston, for relator.

Stratton Lewis & Gilman, for respondents.

ANDERS J.

It is conceded that the facts necessary to an understanding of this case are correctly stated in the relator's brief, and they are substantially as follows: The firm of Davids & Co. composed of I. J. Lewis and D. S. Davids, was conducting a clothing establishment styled "The Famous," in the city of Seattle. These individuals had in their possession a large stock of clothing and gentlemen's furnishing goods, and on April 28, 1894, the London, Liverpool & Globe Insurance Company, a British corporation, having a statutory agent and doing business in Washington, and also in California, issued and delivered to Davids & Co. a policy of insurance, whereby it insured the said stock of goods against loss or damage by fire. Other insurance companies also insured the same goods, the aggregate amount of the insurance being $49,000. On October 1, 1894, the stock was damaged and was partially destroyed by fire. The total loss was soon thereafter adjusted between the insured and the several insurance companies at the sum of $23,750. After the adjustment of the loss, and on November 26, 1894, Davids & Co. assigned their demands against the insurance companies to the relator herein, the Puget Sound National Bank, by written assignments, and on the same day the bank notified the companies of the assignment, and delivered to each a copy of the assignment of the demand against it. On January 19, 1895, one Herman Shainwald, as assignee in bankruptcy of the firm of Schoenfeld, Cohen & Co., formerly of San Francisco, and of the several members of that firm, commenced an action in equity in the district court of the United States at San Francisco against said Davids and Lewis, and one Harris Lewis, the said insurance companies, and John Doe and Richard Roe, and obtained a temporary restraining order enjoining the defendants, their servants, etc., from collecting or transferring or interfering with the property of "The Famous," and from paying moneys to Davids & Co., until the further order of the court. The bill of complaint was subsequently so amended as to make the relator herein a defendant instead of the fictitious defendants above named. The complainant in that action claimed that the property insured was not the property of Davids & Co., but of Harris Lewis, against whom a judgment had been rendered in that court, and that the assignments to the relator were colorable and fraudulent, and he sought by his suit to subject the remainder of the stock of goods and the amount due from the insurance companies to the payment of his judgment. Service of the subp na was attempted upon the relator, but upon its motion, appearing specially, was quashed. The case in the United States district court is still pending, though several interlocutory opinions have been rendered therein, which are reported in 69 Fed., at pages 487, 687, and 701. On September 17, 1895, the Puget Sound National Bank commenced an action in the superior court of King county for the recovery from the insurance company of the sum of $2,423.45, its proportionate share of the loss as adjusted, with interest from December 1, 1894, at which time the loss became payable according to the terms of the policy. A general demurrer was interposed to the complaint by the defendant, which it subsequently waived, with leave to answer within 10 days. Before the expiration of the time for answering, the company, without answering, filed a motion to stay the proceedings, supported by the affidavit of one of its attorneys here. By the motion the insurance company asks to have all proceedings here stayed until the final determination of the San Francisco suit, upon the ground that the United States district court had obtained jurisdiction of it, and is about to subject it there to the payment of the demand, and there is danger of its being compelled to pay the same debt twice unless the proceedings here are stayed. The affidavit, among other things, sets up the foreign incorporation of the company with its principal office in London, that it has had for a number of years, and now has, at San Francisco, a general office for its Pacific coast business, under the management and supervision of a general manager, who is its disbursing officer for that business, having control of the funds for the payment of its Pacific coast losses, and to whom all local agents on the Pacific coast report and remit all premiums, and who pays all Pacific coast losses from funds in his possession at San Francisco; that at the time of the filing of the bill in California this manager had under his control the company's funds wherewith to pay this loss; that the insurance company had appeared in that suit, and unsuccessfully moved to set aside the restraining order, and that there is danger that the action here may be determined before that in California; "that affiant is advised and verily believes that the defendant has a good defense in the above-entitled action upon the merits thereof, but said defendant does not desire to make such defense, and would be willing to pay the amount at which such loss was adjusted, but for the fact of the pendency of the different proceedings against it in different jurisdictions, and pursuant to such object said defendant has, through this affiant, its attorney, offered to the plaintiff herein to pay the amount of such adjustment into court in the said United States district court for the Northern district of California, there to be litigated for, provided the plaintiff would enter its appearance in said suit, but the said plaintiff has refused to do so," and that a like offer has been made by the company's San Francisco attorney to Shainwald, the plaintiff there, and refused. On November 15th the insurance company, by its attorneys, filed in the action a written notice of the issuance of the injunction therein, and requested the bank to enter its appearance, and make defense, and tendered its assistance therein. Subsequently the bank filed the affidavit of its president, showing the bona fides of, and consideration for, the assignment of Davids & Co. to the bank; that the assignment was prior to the filing of the original bill in California; that the indebtedness for which the bank holds the assignments exceeds the amount due upon all the policies, and stating that the offer to pay made by the attorney for the company was not so much an offer as a suggestion of willingness to pay, and expressly denied and excluded the accrued interest due on the demand. The insurance company filed the further affidavit of its attorney to the effect that it had employed competent attorneys, and is making a bona fide effort to have the suit dismissed as to itself. On November 23d the motion for a stay came on to be heard upon the complaint and the foregoing affidavits and motion, and the learned judge of the court below granted the motion, and ordered the proceedings stayed here until the California suit "be determined so far as the same affects the liability of the defendant here to the plaintiff there upon the policy issued by this defendant and sued upon in this action." The bank then demanded that the court proceed with the cause, and require the issues to be made up, but the court declined to accede to the demand, whereupon the bank, by its attorneys, applied to this court for a writ of mandate compelling the court below to proceed as requested.

The primary and principal question to be determined is whether the court was justified by the facts and the law in granting a stay of proceedings at the request of the defendant, and refusing to proceed with the cause when requested to do so by the plaintiff therein, the relator here. It is contended by the relator that the insurance company was not entitled to a stay at any stage of the proceedings, and especially that no stay should have been granted before the issues to be determined were fully made up. Its position is that the facts relied upon by the defendant company for a stay should have been set up in the answer, as was done in the Neufelder Cases, 6 Wash. 336, 33 P. 870, and 10 Wash. 393, 39 P. 110 and not by way of motion supported by affidavit merely. We think it would have been better practice, and that which is most consonant with the spirit of our statute, to have set forth in the answer all the facts relied upon by the defendant as entitling it to the relief sought. If the pendency of another action is claimed as ground for an abatement, it would seem that it should be pleaded. Our statute, like many others, provides that if the complaint is not answered within a specified time after the service of summons the plaintiff may take judgment against the defendant by default or for want of an answer. It would, therefore, be error for the court to refuse to grant such judgment where no answer or demurrer has been filed within the prescribed time. And, on the other hand, if the defendant, by answer, admit the allegations of the complaint, the plaintiff is likewise entitled to judgment, unless the defendant shows affirmatively that the plaintiff has no such right. It would, therefore, seem logically to follow that where a defendant, as in this case, admits liability upon the cause of action stated in the complaint, such admission, and the facts showing that the action ought to be stayed or abated, should be set forth...