Hays v. Dennis

11 Wash. 360 | Wash. | 1895

Lead Opinion

The opinion of the court .was delivered by

Hoyt, C. J.

Respondents move to dismiss this appeal for the reason that it was taken before the judgment had been made, signed and entered. That it was taken after the announcement by the court of the terms of the judgment is conceded, and, such being the fact, we think the motion must be denied. The statutes governing appeals should be liberally construed to the end that parties may have a review by this court of the rulings of the superior courts when they so desire. The appeal statute when thus construed will require us to give force to a notice of appeal given after the court had announced its decision, although it was before the signing and entering of the formal judgment. For some purposes the-judgment may not be complete until thus signed and entered, but after such announcement it was so far complete as to sustain a notice of appeal.

The only question presented upon the merits is as to the sufficiency of the complaint of appellants. We have been able to gather from the brief of respondents-but two grounds upon which they found their contention that such complaint did not state a cause of action. One is that the interest of the mortgagor in the- property to foreclose a mortgage upon which the suit was brought was not such that he could make a valid mortgage thereon. The other is that the. mortgage and another paper upon which plaintiffs founded rights were not set out either at length or in substance in the complaint; that they were only referred to. therein and annexed thereto as exhibits.'

That there is a line of cases which hold that a complaint cannot be aided by an exhibit referred to therein and attached thereto is beyond question. But under the liberal rule as to the construction of pleadings under our statute (Code Proc., § 206) the doctrine therein announced is of doubtful authority in any case, and when there is such a statement of the nature of the paper attached as an exhibit as to put an interested party upon inquiry as to its contents, can be given no force. The reference in the complaint under consideration to the attached exhibits was sufficient to thus put the defendants upon inquiry, and, in our opinion, made them a substantial part of the complaint. Information as to their general nature was given in the body of the complaint, and the means given to obtain the fullest knowledge by easy reference. Hence the complaint fully advised the defendants of the facts relied upon by plaintiffs. And this being its effect, it was good when attacked by general demurrer.

As to the interest of the mortgagor in the property, it is only necessary to say that, upon substantially the same facts in regard thereto as were shown by the complaint in this action, his interest therein was determined by this court in the case of Dennis v. Kass & Co., ante, p. 353. It will, therefore, not be necessary for us to enter into a discussion of that question. From what was therein said it will be seen that, in the opinion of this court, the interest of the mortgagor was substantially that of a tenant in common. Hence, under well settled rules, it was within his power to give a mortgage which would cover his interest in the property.

In addition to the facts which appear in the case just referred to, an additional fact is set out in this complaint to the effect that the affairs of the partnership had been fully adjudicated in a suit between the partners, and a lien on the property in question declared in favor of the mortgagor for something over five hundred dollars. The reasons for holding that he had such an interest in the property as would authorize him to make a mortgage thereon are greatly aided by this adjudication, and if the conclusion to which we arrived in the case cited was correct, it is beyond question that under the facts stated in this complaint the mortgagor had an interest in the property which he could incumber by mortgage.

In our opinion the complaint stated a cause of action, and the superior court committed error when it sustained a general demurrer thereto. Judgment will he reversed, and the cause remanded with instructions to overrule the demurrer.

Scott and Dunbar, JJ., concur.

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Concurrence Opinion

Gordon, J.

(concurring).—I concur in the result; but am not prepared to extend what is said in the opinion concerning the failure of plaintiff to set out “at length or in substance” the instrument upon which his right to a recovery is founded to all cases, nor to adopt it as a rule of pleading. By far the better and safer rule is that a complaint should state a cause of action by its averments without reference to exhibits. Here, however, the exhibit is a chattel mortgage — something which has a fixed and definite meaning in law and in English, and hence I think the reference to it in the pleading is permissible and sufficient.

Anders, J., concurs in the above.