25 Wash. 261 | Wash. | 1901
.The opinion of the court was delivered by
Tbe appellant brought this action to recover damages for the loss of a horse, alleged to have been caused by the negligence of the respondent. The respondent answered the complaint by a general denial, and by pleading affirmatively three separate defenses, one of which was as follows:
“1. That on the 30th day of November, 1898, at Spokane, in an action then pending in the above-entitled court between the above-named plaintiff and the above-named defendant, and for the same cause of action as that set forth in the complaint herein, the court, after the case
Herman Bartelt, Plaintiff, v. Charles Seehorn, Defendant.
No. 13017.
On the 30th day of November, 1898, this cause came regularly on for trial, and the jury being regularly impaneled, and it appearing from testimony of plaintiff’s witnesses and the pleadings that the plaintiff was not entitled to any damages herein, and the court being fully advised in the premises, it is by the court ordered that said action be dismissed, and it is ordered that defendant recover his costs and disbursements herein.
Leawder H. Prather, Judge.’
“And the cost bill was filed, and the judgment was thereafter satisfied by defendant paying the plaintiff the amount of said costs.”
The appellant, in his reply, did not traverse the allega: tions contained in the separate defense quoted, whereupon the respondent moved' for judgment on the pleadings, which motion the trial court granted, and entered judgment for the respondent. This appeal is from that judgment.
The'appellant contends that the prior action between the parties was prosecuted upon a different theory from the one before us, and upon different allegations with respect to the facts; that it required entirely different proof to maintain it from that required to maintain the present action, and hence the judgment entered in the first action, conceding it to be upon the merits, is not a bar to the second. To support his contention, he has caused the clerk of the trial court to certify the pleadings in the former case to this court, and insists that they are properly before us for consideration. It is manifest, however, that the
The sole question before us therefore is, do the facts pleaded in the separate answer quoted show that the controversy was barred by the former judgment? It may be conceded, as the appellant argues, that a judgment of nonsuit or of dismissal entered by the trial court, on motion of the defendant, when the plaintiff fails to prove a sufficient cause for the jury, is not a bar to a subsequent action for the same cause. Such is the rule not only under the general principles of law, bnt by the express terms of the statute. Bal. Code, §§ 5085-5087. But the averment in the answer quoted is not that the plaintiff merely failed to prove a sufficient cause for the jury. It is averred that his evidence showed that he had knowledge “of the defective condition of said fence described in the complaint,” which, as a matter of law, in the judgment of the trial court, precluded him from recovering damages for the injury complained of in his complaint. In other words,
Reavis, G. J\, and Anders and Dunbar, JJ., concur.