78 Wash. 39 | Wash. | 1914
The plaintiff, Holt Manufacturing Company, seeks recovery from the defendant, A. J. Coss, sheriff of Adams county, damages which it claims resulted to it from an unlawful sale by the defendant of certain wheat and the appropriation of the proceeds thereof, upon which wheat the plaintiff claims a superior lien by virtue of a chattel mortgage foreclosure and execution issued thereon. The cause was submitted to the superior court without a jury, upon an agreed statement of facts, for decision upon the merits. Judgment was thereupon rendered in favor of the defendant, from which the plaintiff has appealed.
The controlling facts may be summarized as follows: On November 10, 1910, Otto Schoenrock executed and delivered to appellant a chattel mortgage upon wheat to be grown upon certain described land during the season of 1911. On September 12, 1911, the Inland Trading Company commenced an action in the superior court for Adams county against Otto Schoenrock, and caused a writ of attachment to be issued therein and delivered to respondent, as sheriff, for execution. On September 13, 1911, respondent, as sheriff, seized and took possession of the wheat here in controversy, it then being the property of Schoenrock, under authority of the writ of attachment. This wheat was grown in the year 1911, upon land different from that described in the chattel mortgage theretofore given by Schoenrock to appellant. On October 6, 1911, the Inland Trading Company was awarded judgment in that action against Otto Schoenrock for the sum of $750, and execution was issued thereon, requiring respondent, as sheriff, to sell the wheat held by him under the attachment. On the same day, appellant filed its summons and
These two actions were prosecuted to final judgment, entirely independently of each other. Respondent was not a party to appellant’s reformation and foreclosure action, nor was appellant a party to the trading company’s attachment action. There was, therefore, no adjudication in either of these actions as to the superiority of the respective liens of appellant and the Inland Trading Company upon the wheat. Respondent, as sheriff, proceeded to give notice of sale of the wheat, under the foreclosure execution, and thereupon, on October 16, 1911, the Inland Trading Company commenced an action in the superior court for Adams county, against respondent, as sheriff, and appellant, Holt Manufacturing Company, seeking to enjoin the sale under the foreclosure decree, and also to have the attachment judgment lien of the Inland Trading Company decreed superior to the foreclosure lien of appellant. The sale was enjoined in that action pending the court’s decision upon the question of the superiority of the respective liens. On November 22, 1911, Otto Schoenrock filed in the United States district court for the eastern district of Washington his petition in bankruptcy, and was, on that day, duly adjudged a bankrupt.
On November 23, 1911, the action in the superior court
Before the commencement of this action, appellant, Holt Manufacturing Company, demanded that respondent, as sheriff, proceed with the sale of the wheat under its foreclosure judgment and decree, appellant’s claimed right to have the sheriff so proceed being rested upon the theory that the bankruptcy adjudication of Otto Schoenrock had dissolved the attachment and judgment lien of the Inland Trading Company, and thus left appellant’s foreclosure lien as the first and superior lien.
It seems plain, from the contentions of counsel for appellant, that had not Otto Schoenrock been adjudged a bank
“That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt. . . .” 80 Stats, at L. 565.
It seems to us the complete answer to this contention is found in the fact that the bankruptcy adjudication occurred before the rendering of the judgment of the superior court in the action brought therein to determine the superiority of the respective liens of appellant, Holt Manufacturing Company, and the Inland Trading Company. If it be true that the bankruptcy adjudication, in the light of the provisions of the bankruptcy act above quoted and the facts disclosed by this record, would render appellant’s foreclosure lien superior to the Inland Trading Company’s attachment and judgment lien, such fact only argues that there was not brought before the superior court the fact of the bankruptcy adjudication, or that the superior court erroneously decided that the attachment and judgment lien of the Inland Trading Company was superior to that of appellant, Holt Manufacturing Company. That judgment not being appealed from, it is necessarily final as to the superiority of the Inland Trading Company’s lien, in so far as that question could be
It is suggested that, the bankruptcy adjudication occurring but shortly before the submission of the question of the superiority of the respective liens of appellant and the Inland Trading Company, counsel did not know of the existence of such adjudication and therefore had no opportunity to bring the fact to the attention of the superior court. We have no facts here showing what counsel’s knowledge was as to that fact; but, assuming that they had no such knowledge, such fact would only argue that appellant, Holt Manufacturing Company, might be entitled to a new hearing upon the ground of newly discovered evidence and surprise which prevented it from obtaining the judgment it may have been entitled to in the superior court.
We have, then, a judgment of the superior court upon the very question here presented, which has not been appealed from nor sought to be revised in any manner, and no new fact coming into existence since the rendering of that judgment which is material to the controversy, to wit, the question of the superiority of the respective liens of appellant and the Inland Trading Company. It is strenuously insisted that there is not here presented the same question as in the former case before the superior court of Adams county. We are unable to see that such is the fact. The real question there involved was the superiority of these respective liens. That is, in its final analysis, the exact and only question here, as it was there, involved. Counsel for appellant rest their whole case here upon the theory that appellant’s foreclosure lien is superior to the attachment and judgment lien of the Inland Trading Company, and they seek to so show by evidence of facts, to wit, the bankruptcy adjudication which was in existence and might have been brought to the attention of the superior court in the prior action where the question of
“The estoppel of a judgment extends only to the facts in issue as they existed at the time the judgment was rendered, and does not prevent a reexamination of the same questions between the same parties where in the interval the facts have changed or new facts have occurred which may alter the legal rights or relations of the litigants.”
The trouble with counsel’s contention is that the rule is not applicable here, because the claimed new fact relied upon in support of appellant’s foreclosure lien, to wit, the bankruptcy adjudication of Schoenrock, is not a new or additional fact coming into existence after the rendition of the judgment of the superior court, but is a fact which was then in existence. To be now influenced by that fact in this case would be but to retry what was already tried by the superior court, upon evidence which was then in existence and which was admissible upon that trial. In 23 Cyc. 1291, immediately following the statement of the rule invoked by counsel for appellant, we read:
“But if a point or question was in issue and adjudicated in a former suit, a party bound by the judgment cannot escape the estoppel by producing at a second trial new arguments or additional or different evidence in support of the proposition which was decided adversely to him.”
On the question of identity of issues, or causes of action, where a controversy is claimed to have been rendered res ad judicata by a former judgment, in 2 Black on Judgments (2d ed.), § 726, it is said:
“For the purpose of ascertaining the identity of the causes of action, the authorities generally agree in accepting the following test as sufflcient: Would the same evidence support, and establish both the present and the former cause of action ? If so, the former recovery is a bar; if otherwise, it does not stand in the way of the second action.”
We are of the opinion that the question here involved has been finally determined against appellant by the former judg
Some contention is made that appellant’s rights were prejudiced by the private sale of the wheat by respondent, and the disposition of the proceeds thereof by him. In view of the fact that the Inland Trading Company’s attachment and judgment lien amounted to $750 and that the admitted value of the wheat which was sold by respondent was only $698, appellant could, in no event, have been prejudiced, whatever disposition of the proceeds may have been made by respondent at the instance of the Inland Trading Company. The Inland Trading Company’s superior lien being greater in amount than the value of the wheat, appellant could, in no event, have received any of the proceeds of its sale. Munroe v. Sedro Lumber & Shingle Co., 16 Wash. 694, 48 Pac. 405.
It might well be argued that only the trustee in bankruptcy, as the representative of the general creditors of the bankrupt, would have the right to insist upon the dissolution of the attachment and judgment lien of the Inland Trading Company; and that it was only for their benefit that subdivision F, § 67 of the Federal bankruptcy law above quoted was enacted. This interesting inquiry, however, we need not pursue, in view of our conclusions as to the finality of the judgment of the superior court for Adams county holding the Inland Trading Company’s lien to be superior to that of appellant. We conclude that the judgment of the learned trial court must be affirmed.
It is so ordered.
