White v. Miley
| Decision Date | 22 December 1925 |
| Docket Number | 19515. |
| Citation | 241 P. 670,137 Wash. 80 |
| Court | Washington Supreme Court |
| Parties | WHITE v. MILEY et al. |
Department 2.
Appeal from Superior Court, Snohomish County; Alston, Judge.
Action of replevin by R. H. White against C. W. Miley and others. From judgment notwithstanding verdict for defendants plaintiff appeals. Reversed and remanded, with instructions.
Horan & Mulvihill, of Everett, for appellant.
W. P Bell and Coleman & Fogarty, all of Everett, for respondents.
In this action of replevin, brought to recover three bull hooks and five choker hooks, wires, and pulleys, a judgment notwithstanding the verdict was granted, and the action dismissed. This appeal was then taken.
The motion was granted upon the ground that the appellant had split his cause of action, and that a judgment in a case wherein appellant was plaintiff and the respondents were defendants, being No. 21999 in the superior court of Snohomish county, was a bar to the present action.
The appellant had been engaged to do clearing on a right of way in Clallam county for the respondents, and in that work used a donkey engine and other equipment, including the property sought to be replevined in this action. Respondents, failing to allow the appellant to complete his contract, took the contract over and finished it, and took possession of the appellant's property which he had been using in clearing the right of way. The appellant then brought the action No. 21999 for conversion of the donkey engine and certain other personal property, not including the articles, the subject-matter of this suit, which is No. 22654 in the superior court of Snohomish county. While No. 21999 was pending, the appellant made a demand upon the respondents for the hooks involved in this action, and he was informed that the respondents did not claim these hooks; that they were in Clallam county, where the appellant had left them; and that he could there obtain them. At that time, in action No. 21999, respondents claimed the right to take the donkey engine and the other property there involved, and at the time the appellant was informed that no claim was being made for the hooks here in controversy cause No. 21999 was in such a condition that, if respondents had made a claim to the hooks, they could have been included in that cause, which thereafter proceeded to trial, and judgment was rendered against the defendants there, the respondents in this action, for the conversion of the donkey engine and other property. Thereafter the appellant went to Clallam county to get the hooks, and discovered that they were not in the place where the respondents had taken possession of them, but that they had been in the possession of the respondents at another place where respondents were conducting operations. As already said, the superior court held that the appellant should have included these hooks in the conversion action, No. 21999, and, having failed to do so, he had split his cause of action, and could not recover for them in this cause.
At the outset it may be conceded that in cause No. 21999 the personal property sought to be recovered in this action could have been included, and that ordinarily, the appellant having recovered for the conversion of the donkey engine and equipment, he should be held to waive any other cause of action which he might have had for the recovery of any other part of the engine's equipment. The authorities are multifarious to this effect, and hold that the rule against split causes of action requires the plaintiff to join in one action his claims and demands concerning all the property which can properly be brought into that action. 34 C.J. 834 964; Huffman v. Knight, 36 Or. 581, 60 P. 207; Coles' Adm'x v. Illinois Cent. R. Co., 120 Ky. 686, 87 S.W. 1082; Hatch v. Coddington, 32 Minn. 92, 19 N.W. 393; Claflin v. Fletcher (C. C.) 7 F. 851; Herriter v. Porter, 23 Cal. 385; Burdge v. Kelchner, 66 Kan. 642, 72 P. 232; Kline v. Stein, 46 Wash. 546, 90 P. 1041, 123 Am. St. Rep. 940; State ex rel. Alaska P. Nav. Co. v. Superior Court, 113 Wash. 439, 194 P. 412. But this concession does not justify a dismissal of this present action, for the rule as above stated is subject to a modification which is operative when the appellant has been misled by the defendant and thereby prevented from including in the original action the articles which are the subject to the second action. Under such circumstances the splitting of a cause of action is permitted. Where, in the original action, articles have been omitted through fraud or mistake induced by the defendant, he will not be heard to raise the point that the articles sued for in the...
To continue reading
Request your trial
-
State v. McCollum
...is based requires presentation to the county commissioners for allowance Before any action can be brought thereon. White v. Miley, 137 Wash. 80, 84, 241 P. 670, 672 (an action in replevin), Dow v. Dempsey, 21 Wash. 86, 57 P. 355, as follows: 'It is said, however, by the respondents that in ......
-
Weaver v. City of Everett
...673 P.2d 610.9 Indeed, in such a tort action, splitting a claim was forbidden. Sprague, 139 Wash. 510, 247 P. 960 ; White v. Miley, 137 Wash. 80, 241 P. 670 (1925) ; Kinsey v. Duteau, 126 Wash. 330, 218 P. 230 (1923) ; Collins v. Gleason, 47 Wash. 62, 91 P. 566 (1907) ; Kline v. Stein, 46 W......
-
Hyde v. City of Lake Stevens
...Washington, the practice of claim splitting has long been forbidden. Sprague v. Adams, 139 Wash. 510, 247 P. 960 (1926); White v. Miley, 137 Wash. 80, 241 P. 670 (1925); Kinsey v. Duteau, 126 Wash. 330, 218 P. 230 (1923); Collins v. Gleason, 47 Wash. 62, 91 P. 566 (1907); Kline v. Stein, 46......
-
Meacham v. Mortg. Elec. Registration Sys., Inc.
...However, the Washington Supreme Court has, in the past, recognized fraud as an exception to res judicata. See, e.g., White v. Miley, 137 Wash. 80, 82, 241 P. 670, 671 (1925). Because neither party provides an adequate analysis for how res judicata operates in light of Plaintiffs' allegation......