38 Wash. 545 | Wash. | 1905
This appeal is taken by the defendants from a decree quieting title in the plaintiffs to certain
It is argued that the court erred in denying a motion
“This court in that case did hold that an action to quiet title should be dismissed for want of equity where the proofs failed to show that the plaintiff was in possession of the lands the title to which was sought to be quieted, or that the same was unoccupied by any person. It spoke also as if the question was one of the jurisdiction of the court. It is clear, however, from the opinion as a whole, that the court did not mean by its use of this term that it was without jurisdiction or power to determine the subject-matter of the controversy between the parties or that a judgment entered therein would have been void, but meant rather that equity would not entertain a suit to quiet title when.the plaintiff had an adequate remedy at law, and that he had such adequate remedy in that case by an action of ejectment against the person in possession. In other words, it was held that plaintiff had mistaken his form of action, and the court would not permit-him to maintain it over the objection of the defendant. And this must be so from the nature of the objection. The fact
'And it was held that the appellants having answered on the merits, after the overruling of their demurrer to the complaint, they were estopped from raising the question that the plaintiff was not in possession of the lands the title to which was sought to be quieted, or that the same was unoccupied by any person.
In the case at bar, not only did the appellants waive this objection after demurring to the complaint, by answering to the merits and trying the issues out, but they ashed for and obtained the verdict, of a jury upon the issues of facts included in the ease involved; and these are all the additional rights they would have obtained in an action at law. It is true that the court, did not submit the question of former adjudication to the jury, but that was plainly a question of law, under the record in this case, for the court to determine; and, in our judgment, it, could not have been determined in any other way than the way in which it was determined by the court. The parties to the action were not the same, the relief demanded was not the same, and it was in no -sense res adjudicuia of this action. It plainly appears in this action that the appellants did not have title to the timber, their deed to the land especially excepting the timber, so that all the available claim was that they
There are no prejudicial errors discernible in the admission or rejection of testimony, or in the giving or re- ■ fusing to give instructions. The judgment is affirmed.