Trumbull v. Jefferson County

• Decision Date: 15 November 1910
• Citation: 111 P. 569,60 Wash. 479
• Parties: TRUMBULL et ux. v. JEFFERSON COUNTY et al.
• Court: Washington Supreme Court

111 P. 569

60 Wash. 479

TRUMBULL et ux. v. JEFFERSON COUNTY et al.

Supreme Court of Washington

November 15, 1910

Department 2. Appeal from Superior Court, Jefferson County; Lester Still, Judge.

Action by Thomas F. Trumbull and wife against Jefferson County and another. Decree for plaintiffs, and defendants appeal. On motion to dismiss. Motion denied.

A. W Buddress and James W. B. Scott, for appellants.

CROW J.

This action was commenced by Thomas F. Trumbull and Lida P Trumbull, his wife, against Jefferson county and Harry Hart its treasurer, to vacate a tax foreclosure judgment and set aside a tax deed affecting real estate to which the plaintiffs claim title. From a decree in their favor, the defendants have appealed.

The present hearing is upon respondents' motion to dismiss the appeal. They contend that, since the commencement of the action and prior to judgment, the county conveyed its interest in the real estate to one P. M. Coyne; that the appellants are not aggrieved by the final judgment and cannot prosecute this appeal. In support of their motion they have filed affidavits and certified copies of records showing that, when this action was commenced, they filed a notice of lis pendens with the auditor of Jefferson county, and that on the next day the appellant Harry Hart, as treasurer of Jefferson county, sold to P. M. Coyne all the right, title, and interest of the county in and to the real estate. The transcript shows that the action was commenced on April 10, 1908. No suggestion of the sale to Coyne appears in any of the pleadings, although the issues were not completed until March 9, 1910, the date of the trial. From the statement of facts it appears that the cause was tried on the issues raised between the respondents and appellants; that no mention of the transfer to P. M. Coyne was made during the trial, and that no motion was made to substitute him as a defendant. Respondents' contention is that, by reason of the transfer, the county has no further interest in the subject-matter of the action, and that the controversy has ceased. In support of their contention they cite a number of cases from this court, in which it appeared that some action such as a satisfaction of the judgment had occurred, which determined the controversy. Here nothing changing the situation of the parties has occurred since judgment. The deed upon which respondents now predicate their motion to dismiss was executed and recorded almost two years before the trial. Not a suggestion of the transfer was made prior to trial, judgment, or appeal. The statement of facts has attached thereto the certificate of the trial judge, under date of June 13, 1910, that it contains all material facts, matters, and proceedings theretofore occurring in the cause and not already a part of the record. The appellants now support their motion by a showing that the transfer was made prior to the framing of the issues, after the commencement of the action, and long prior to trial or judgment. Matters outside of the record occurring after judgment, which affect the right of an appellant to presecute his appeal, may be shown to and considered by the appellate court, on a motion to dismiss. But no such showing should be permitted as to matters occurring prior to judgment. They should be incorporated in the record by proper procedure at the instance of the litigant who intends to rely upon them. In Merriam v. Victory Mining Company, 37 Or., at page 329, 56 Pac., at page 75, 58 Pac., at page 37, 60 Pac., at page 998, discussing this rule of practice the court well said: 'It is quite well settled that evidence of facts outside of the record, occurring after the rendition of the judgment in the court below, and which affect the proceedings of the appellate court, when deemed necessary, will be received and considered by such court for the purpose of determining its action. Ehrman v. Astoria Ry. Co., 26 Or. 377, 38 P. 306; Dakota County v. Glidden, 113 U.S. 222 28 L.Ed. 981; Elwell v. Fosdick, 134 U.S. 500 33 L.Ed. 998. But the record of the court below, upon which the appeal is based, cannot be contradicted or varied by an ex parte showing in the appellate court.' Notwithstanding the existence of the alleged transfer to Coyne, made two years prior to the trial, the respondents failed to plead or prove the same. They predicated no claim on the transfer in the court below, but during the trial upon the merits at all times treated the county and its treasurer as the only necessary parties in interest. A lis pendens was filed, and any one thereafter making a purchase of the land would be bound by the judgment against the appellants to the same extent as if he were a party to the action. Rem. & Bal. Code, §§ 243, 803, 806.

Our Code expressly provides that no action shall abate by the transfer of any interest therein. In Box v. Kelso, 5 Wash., at page 362, 31 Pac., at page 974, this court said: 'At common law the death of the plaintiff, or the termination of his interest in the subject-matter of the action, was good ground upon which to base a plea in abatement. But under our statute the rule is different. By section 134 [179, Rem. & Bal.] of the Code of Procedure, it is provided that 'every action shall be prosecuted in the name of...