White v. Million

• Citation: 175 Wash. 189,27 P.2d 320
• Decision Date: 23 November 1933
• Docket Number: 24671.
• Parties: WHITE v. MILLION.
• Court: United States State Supreme Court of Washington

27 P.2d 320

175 Wash. 189

WHITE v. MILLION.

No. 24671.

Supreme Court of Washington

November 23, 1933

Department 1.

Appeal from Superior Court, King County; Roscoe R. Smith, Judge.

Action by Bertha White against Carroll Million, as executor of the last will and testament of E. C. Million, deceased. From a judgment granting insufficient relief, plaintiff appeals.

Reversed and remanded.

A. W. Buddress, of Seattle, for appellant.

J. L Corrigan, of Seattle, for respondent.

STEINERT Justice.

This action was originally brought to foreclose a pledge of certain corporate stock given as collateral to two promissory notes. Subsequently, an amended complaint was filed wherein plaintiff sought recovery upon the notes, foreclosure of the collateral, and a judgment for any deficiency remaining. At the trial, the court sustained a demurrer, ore tenus, to the amended complaint, but granted the relief prayed for in the original complaint. From the judgment entered, plaintiff has appealed.

In order to make clear the issues Before us, it will be necessary to detail the facts of the case and also the procedural steps in their chronological order.

On March 1, 1929, E. C. Million executed and delivered to appellant his two promissory notes for $5,000 and $8,000 respectively, payable three years after date. To secure the payment of these notes, Million pledged and delivered to appellant twenty shares of corporate stock. On April 8, 1932 after the maturity of the notes, Million died, testate, and on April 14, 1932, respondent was appointed executor of the will and duly qualified as such.

On May 21, 1932, appellant commenced this action against the respondent, by service of summons and complaint, seeking to foreclose her lien upon the stock. Summons and complaint, together with proof of service, were filed on June 6, 1932. It was not alleged in the complaint that any claim, based upon the notes, had been presented to the executor, nor was any deficiency judgment asked for in the complaint. On the last mentioned date, June 6, 1932, respondent served upon appellant's attorney an answer which admitted in part, and denied in part, the allegations of the complaint; it also pleaded a setoff in the sum of $3,000 for services alleged to have been rendered to the appellant by the deceased in his lifetime. The answer was filed June 9, 1932. On or about July 11, 1932, appellant, having concluded that there would be a deficiency upon the notes after sale of the collateral, properly served and filed her claim for any such deficiency that might remain. The claim was rejected by the respondent on July 15, 1932. In the meantime, appellant had moved for a bill of particulars concerning the set-off in respondent's answer. The motion was denied by the court commissioner, but his order was reversed on appeal to the superior court. A bill of particulars was then supplied by respondent, but was unsatisfactory to appellant, and she promptly moved for a further bill. That motion was also denied by the court commissioner, and a second appeal was taken. On July 15, 1932, pursuant to appellant's several previous demands for a bill of particulars, the court entered an interlocutory order permitting respondent's attorney to take the deposition of appellant for the discovery of facts necessary to enable the respondent to furnish a further bill.

On July 20, 1932, after notice to respondent and by leave of court, appellant served and filed her amended complaint, which was virtually a repetition of her original complaint, with the addition of two paragraphs alleging the presentation and rejection of her claim. There was no issuance or service of process based upon the amended complaint, but merely a service and filing of the pleading itself.

On August 4, 1932, a 'further and additional bill of particulars,' sworn to personally by respondent, was served upon appellant's attorney and was filed the next day. It will be noted that this bill of particulars was served and filed after the amended complaint had been filed. This fact has an important bearing upon the question involved in this case.

No amended answer, nor any answer specifically directed to the amended complaint, was ever served or filed by respondent. His original answer was permitted to stand. On August 8, 1932, appellant served and filed her reply.

The case was then noted for trial and nothing further was done thereafter by either party until the day of trial, May 9, 1933. At the trial, both parties appeared in person and by counsel. Appellant's attorney made an opening statement of the case, at the conclusion of which respondent's attorney raised certain objections, which were considered by the court as a demurrer ore tenus. The grounds of the objections were (1) that no summons based upon the amended complaint had ever been issued or served on the respondent, and (2) that the amended complaint was a cause of action wholly distinct from that set out in the original complaint, and did not exist at the time that the original complaint was filed.

The court sustained the objections and refused to proceed with the case as presented by the amended complaint. After some further argument between court and counsel, respondent withdrew the affirmative matter contained in his answer, and the court then granted appellant the relief prayed for in the original complaint, that is, foreclosure of the pledged collateral. In the formal judgment, entered July 20, 1933, the court (1) adjudged that there was 'justly due and owing to plaintiff from said defendant the total sum of fourteen thousand four hundred and sixty-five ($14,465.00) dollars, and the additional sum of five hundred ($500.00) dollars for plaintiff's Attorney's fees, on the two promissory notes from said E. C. Million, deceased'; (2) ordered the foreclosure of respondent's lien upon the stock; and (3) dismissed the amended complaint. This appeal followed.

Since the court's rulings and disposition of the case were based upon the objections raised by respondent, we will pursue our discussion along the line of those objections.

We take up, first, respondent's second objection above mentioned, namely, that the amended complaint pleaded a new and distinct cause of action which did not exist at the time that the original complaint was served and filed. For the purpose of the present argument, we will assume, without deciding, that this contention is correct. From this premise, respondent argues that any attempt to recover upon any deficiency, in this action, is premature, and that therefore the amended complaint must be dismissed. A number of authorities are cited to the effect that when an action is prematurely commenced, it is not allowable to set up by amended or supplemental complaint a cause of action that came into existence after suit has been commenced. Rockford Shoe Co. v. Jacob, 6 Wash. 421, 33 P. 1057; Commercial Bank v. Hart, 10 Wash. 303, 38 P. 1114; DeMattos v. Jordan, 20 Wash. 315, 55 P. 118; Lawrence v. Pederson, 34 Wash. 1, 74 P. 1011; Gunby v. Ingram, 57 Wash. 97, 106 P. 495, 36 L. R. A. (N. S.) 232; Keeler v. Parks, 72 Wash. 255, 130 P. 111; Staunton v. Swann, 10 N.Y. Civ. Proc. R. 12; American Bonding & Trust Co. v. Gibson County (C. C. A.) 145 F. 871, 7 Ann. Cas. 522; City of Trinidad v. Hokasond, 178 F. 438; 1 C.J., Title Actions, pp. 976, 1149, and 1151; 49 C.J. 571. To these citations may be added the following: Augir v. Foresman, 23 Wash. 595, 63 P. 201; Otto v. Griffin, 54 Wash. 506, 103 P. 789; Llewellyn Iron Works v. Littlefield, 74 Wash. 86, 132 P. 867, Ann. Cas. 1915A, 959; Daniel v. Daniel, 106 Wash. 659, 181 P. 215. Assuming that the foregoing authorities are otherwise applicable to the present situation, we note that all of those cases arising in this state antedate the adoption of the rules of pleading, procedure, and practice promulgated by this court on January 14, 1927, pursuant to chapter 118, p. 187, Laws 1925, Ex. Sess., and set forth in 140 Wash. xxv-xliv.

Rule III(3) of those rules provides: 'Subject to the rules as to joinder of parties and of causes of action, an amendment to the complaint may introduce any new or different cause of action, or add new or different parties.' Rem. Rev. Stat. § 308-3(3).

In McGuirk v. Gazzam, 150 Wash. 554, 274 P. 176, the point here involved was raised and was supported by a number of the authorities above quoted. In the opinion, the court referred to and affirmed rule III(3), supra, and held that an amendment to a complaint might introduce a new cause of action that had not accrued at the time that the action was originally commenced. The texts and authorities cited to sustain a contrary result were held to be inapplicable. There was a concurring opinion, in that case, based solely on the ground that the defense that the action was prematurely brought should have been raised by a plea in abatement. So, in this case, the authorities above cited do not apply, in the face of the rule and its controlling effect; nor was there, in this case, any plea in abatement.

Respondent suggests in his brief that chapter 118, p. 187, Laws 1925, Ex. Sess., under which the rules of practice were formulated and promulgated, is of doubtful constitutionality, for two reasons: (1) Because the Constitution does not in express terms confer upon the Supreme Court the power of...