32 Wash. 198 | Wash. | 1903
Plaintiff brought this action in the.lower court to recover upon five promissory notes. The defendants appeared separately and demurred to the amended complaint, upon the ground that the same did not state facts sufficient to constitute a cause of action, and also upon the ground that the action was not commenced within the time limited by law. These demurrers were sustained. The plaintiff elected to stand upon his complaint, and the action was dismissed. Prom the order of dismissal, plaintiff appeals.
It will he necessary to consider only the last ground of demurrer. The facts stated in the complaint are substantially as follows: On November 27, 1891, the Point Defiance Railway Company executed and delivered to Henry Wood five negotiable promissory notes for $10,000 each, due one year from date. Each of respondents, before delivery of the notes, joined in the execution of an indorsement on the back of each note as follows:
“We hereby severally join in the execution of the within note as original makers thereof and waive presentation and protest notice.”
The railway company, at the time of the making of the notes, and as security for the payment thereof, executed and delivered to the payee a mortgage upon its railway franchises, equipment, etc., in the city of Tacoma. Thereafter, and before maturity, the payee assigned and transferred the notes and mortgage to the appellant. The fourth paragraph of the amended complaint is as follows:
“That said promissory notes were not paid at thé maturity thereof, nor any of them, nor any part of any of them, and in January, 1894, payment thereof being still in default, plaintiff placed said notes 'and mortgage in the hands of Charles S. Eogg, an attorney, residing at Ta
It is then averred that the appellant kept and performed all of the terms of said stipulation upon'his part, and that the respondents have received, accepted, and enjoyed all of the benefits for which they stipulated; that appellant instituted said foreclosure suit against the mortgagor corporation, omitting the respondents herein, and diligently prosecuted the same in the superior and siipreme courts, and did all in his power with diligence and in good faith to collect the full amount of his claim from the mortgaged property; that the superior court decreed appellant’s mortgage was the first lien on the mortgaged property, and said mortgaged property was sold under decree of foreclosure, and the proceeds paid into court, and, by the terms of said decree of the superior court, appellant was entitled to and did receive the full amount of
“Thereafter, it appearing in said foreclosure suit in this (supeifior) court that the plaintiff would he compelled to refund a portion of the sum which he had received in satisfaction of his claim from the proceeds of sale of the mortgaged property, plaintiff, hy leave of court, filed in said foreclosure suit and caused to he served upon the defendants herein an amended complaint making the defendants herein parties defendant, and praying that these defendants be brought into said cause and a judgment rendered against them and in favor of the plaintiff for whatever sum this plaintiff should be adjudged to pay to said John O. Lewis, trustee; and shortly thereafter plaintiff, by leave of court, filed a second supplemental and amended complaint in said suit. The defendants herein were duly summoned to appear and answer to said amended complaint, and in due time appeared therein, and on or about January 17, 1900, the defendants herein served and filed their demurrers to said second amended and supplemental complaint, upon the ground that the same did not state facts sufficient to constitute a cause of action against them, and other grounds; and upon the argument of said demurrers the court, on April 21, 1900, sustained said demjnrrers upon the ground that at that time plaintiff had not yet been ordered or decreed to refund or pay over to said Lewis any part of the money received by plaintiff in satisfaction of his claim out of the proceeds of the sale of the mortgaged property, but that, on the contrary, plaintiff still retained the full amount thereof in his possession, and that the proceeding
It is then alleged that thereafter, on December 18, 1900, the superior court entered its decree in said foreclosure suit, adjudging that plaintiff must refund and pay to said Lewis, trustee, of the funds received by plaintiff from the proceeds of the sale of the mortgaged property in satisfaction of his claim, the sum of $5,000, and at the same time decreed that the entry of satisfaction of plaintiff’s judgment in said foreclosure suit be modified and corrected so as to show a deficiency of said sum of $5,000, with interest from January 18, 1895, at the rate of eight per cent per annum; that prior to the commencement of this action plaintiff paid said sum to said Lewis, and secured the modification of the entry in the execution docket so as to show a deficiency as above specified. It is then alleged that said foreclosure suit was pending, and was diligently and in good faith prosecuted by appellant, and was not finally determined until December 18, 1900, when the final decree of the superior court was made and entered therein; that the Point Defiance Railway Company lost all its property and franchises in the foreclosure suit, and has been ever since insolvent, and without means ■or property of any kind, and ceased to do business; that no action or proceeding at law is now being prosecuted, or has ever been brought or had, for the recovery of the indebtedness evidenced by said promissory notes or any part thereof, and appellant is not now seeking to obtain satisfaction or execution upon said decide of foreclosure; that there is now due and owing to plaintiff from the defendants the sum of $5,000, with interest at eight per •cent, per annum from the 18th day of January, 1895, and an attorney’s fee of five per cent, upon the amount
Since this action was not begun until the year 1901, it is perfectly clear that more than six years have run against the notes, both from the maturity thereof in November, 1892, and from the date fixed by the stipulation, viz., May 1, 1894. In order to avoid the statute of limitations, appellant contends that the statute was suspended by the commencement of the mortgage foreclosure suit in April, 1894, by virtue of §§ 5893 and 4812 Bal. Code. These sections are as follows:
“5893. The plaintiff shall not proceed to foreclose his mortgage while he is prosecuting any other action for the same debt or matter which is secured by the mortgage, or while he is seeking to obtain execution of any judgment in such other action; nor shall he prosecute any other action for the same matter while he is foreclosing his mortgage or prosecuting a judgment of foreclosure.”
“4812. When the commencement of an action is stayed*206 by injunction or a statutory prohibition, the time of the continuance of the injunction or prohibition shall not be a part of the time limited for the commencement of the action.”
This last section clearly provides that where the commencement of an action is stayed by injunction or statutory prohibition, then the statute of limitations ceases to run. It applies to cases where, for some reason beneficial to the debtor, the commencement of the action is prohibited; such as administrators, as in the case of Brigham-Hopkins Co. v. Gross, 30 Wash 277 (70 Pac. 480). It does not apply to cases where the creditor may voluntarily select one remedy which alone can be prosecuted. The commencement of an action cannot be said to be prohibited when the plaintiff is at liberty to pursue the action in one of two or more different forms. Section 5893 was enacted to prevent a multiplicity of suits for the same debt at the same time. It prohibits the foreclosure of a mortgage while the plaintiff is pursuing another action for the same debt. It also prohibits any other action for the same debt while the plaintiff is foreclosing a mortgage. In other words, two separate actions cannot be maintained at the same time for the collection of the same debt. But this section does not prohibit the commencement of an action. The plaintiff may select his remedy. He may bring an action at law upon the notes, or he may bring an action in equity to foreclose his mortgage. He cannot maintain both actions independently at the same time. This section did not prevent the plaintiff from making all the parties to the notes parties to the action and proceeding against all in one action. It simply prohibited the plaintiff from splitting up his cause of action and maintaining two separate actions for the same debt at the same time. He had his election of remedies. In
The judgment is therefore affirmed.
Pullerton, O. J., and Hadley, Anders and Dunbar, JJ., concur.