Wool Growers Service Corp. v. Ragan, 28125.

• Decision Date: 06 October 1943
• Docket Number: 28125.
• Citation: 141 P.2d 875,18 Wn.2d 655
• Parties: WOOL GROWERS SERVICE CORPORATION et al. v. RAGAN et al. (OLSON, Intervener).
• Court: Washington Supreme Court

141 P.2d 875

18 Wn.2d 655

WOOL GROWERS SERVICE CORPORATION et al. v. RAGAN et al. (OLSON, Intervener).

No. 28125.

Supreme Court of Washington, En Banc.

October 6, 1943

On petition for a rehearing or in the alternative for a clarification of former opinion.

Rehearing denied and former opinion clarified.

For former opinion, see 140 P.2d 512.

SIMPSON C.J., and MILLARD, J., dissenting.

Appeal from Superior Court, Yakima County; Arthur McGuire, judge.

Hubbert & Mullins, of Yakima, for appellants.

Richards Conklin & Delle, of Yakima, for respondents Wool Growers Service Corporation and Dale Simmons.

Bonsted & Nichoson and F. C. Palmer, Jr., all of Yakima, for respondents Ragan & Alex Dunnett, copartners.

Cheney & Hutcheson, of Yakima, and Dana E. Brinck and J. Webster Hancox, both of Spokane, for respondent Federal Intermediate Credit Bank of Spokane.

PER CURIAM.

The respondents in the foregoing cause have timely filed a petition praying for a rehearing en banc or, in the alternative and in case a rehearing should be denied, for a clarification of the opinion pronounced thereon on August 11 1943, 140 P.2d 512. The gist of the argument in support of the alternative prayer of the petition is as follows:

'We submit that anything which may be interpreted as a finding by the Supreme Court as to the status of any item of the accounting which must be had between the parties is improper. This court has decided that an accounting must be had, and the lower court should be free to hear evidence from both sides as to each and every item which will enter into that accounting, and both sides should be left free to introduce all appropriate evidence which will bear upon the individual items thereof. It must be remembered that the respondents have not put in any evidence, or at least all of their evidence, relating to some of the matters above set forth, nor as to the demand for accounting, and they should not be put in a position upon the re-trial of being foreclosed from showing all the facts relative to the above matters because the court has mentioned them in its opinion as if it were deciding them, and thereby closing the door to any further investigation of them.

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'We submit that the true situation is that, it having been decided them an accounting must be had, we are right back to where we were when the case came on for trial in the lower court the first time, and respondents should be permitted to make their accounting, unhampered by any findings of fact or determinations from this court which have been made upon the partial evidence Before this court for review. In other words, the lower court denied cross-complainants the right to an accounting, this court has reversed that decision and held that cross-complainants are entitled to an accounting, and now respondents should be permitted to make it without any element of res judicata entering into the making thereof.'

A majority of the court is of the opinion that a rehearing should be denied but that the alternative prayer of the petition should be granted. Accordingly, it is ordered:

(1) That the petition of the respondents for a rehearing en banc be and is hereby denied;

(2) That the trial court be directed that, in taking the account ordered, no specific item thereof shall be treated as having been allowed or disallowed by this court, nor shall it be deemed that this court has made any final decision as to the validity of any mortgage debt involved or any final determination of the amount, if any, due or owing thereon.

SIMPSON Chief Justice (dissenting).

I dissent upon two grounds:

First the majority makes a very definite change in the original opinion and this...