Thompson-Spencer Co. v. Thompson

• Decision Date: 07 January 1911
• Parties: THOMPSON-SPENCER CO. v. THOMPSON et al.
• Court: Washington Supreme Court

112 P. 655

61 Wash. 547

THOMPSON-SPENCER CO. v. THOMPSON et al.

Supreme Court of Washington

January 7, 1911

Department 1. Appeal from Superior Court, Stevens County; E. H Sullivan, Judge.

Action by Thompson-Spencer Company against O. A. Thompson and others. Judgment for plaintiff, and defendants appeal. Affirmed.

O. C Moore and Martin & Wilson, for appellants.

Hamblen & Gilbert and Danson & Williams, for respondent.

MOUNT, J.

This is the second appeal in this case. When it was here before, the judgment was reversed and the cause remanded for further proceedings. 49 Wash. 170, 94 P. 935. The facts are fully stated in the report of the former appeal, and need not be restated here. We there held that the facts proven were sufficient to afford relief to plaintiff in the action. Thereafter the cause was remanded, a new trial was had, and the trial court found, in substance, that the land in question was the property of the plaintiff; that the appellant Martin took a quitclaim deed thereto from Thompson with notice and knowledge that Thompson had no interest in the land, and without any consideration except an antecedent debt past due. A decree was thereupon entered, removing the cloud by reason of the quitclaim deed from Thompson to Martin. The defendants have appealed from that decree, and argue that the trial court should have dismissed the action because the plaintiff is a domestic corporation, and the complaint did not allege and the proof did not show that the corporation had paid its annual license fee, under section 3715, Rem. & Bal. Code.

The record shows that the action was begun in the year 1906, and was completely at issue prior to the passage of that statute. In Rothchild v. Mahoney, 51 Wash. 633, 99 P. 1031 we held that this objection must be taken either by demurrer or answer, and a failure to do so waived the question. The appellants in this case, at the close of plaintiff's evidence, moved the court to dismiss the action, because 'the evidence introduced does not show a right of recovery.' But the ground now urged was not specifically mentioned. We think the appellants should have stated this ground, so that the fact could have been supplied if the respondent could do so. The question, not having been raised was waived.

The other questions argued are questions of fact. The evidence is amply sufficient to show that Mr. Thompson had sold the land to plaintiff, and received pay...