103 Wash. 622 | Wash. | 1918
— By an original suit, plaintiffs seek a modification or vacation of a former judgment, so that they may now recover judgment on a note and foreclose a chattel mortgage; and in the event foreclosure cannot be had, then judgment for the value of the chattels alleged to have been converted by these defendants. The note and mortgage were given by the Pasco Theatre Company of Pasco, Washington. In two former suits in the superior court of Franklin county, this same matter has been in litigation and the
Appellants, in their amended complaint, contend they have discovered fraud which now entitles them to maintain this action. It is apparent, however, and the trial court held, that there is no allegation of any new fraudulent matter, so far as J. A. Ryzek and John Ryzek are concerned, occurring since, or different from, that alleged in the former causes, the judgments in which now preclude appellants as to respondents John Ryzek and J. A. Ryzek. We are relieved of the tediousness of analyzing and paralleling the present amended complaint with the issues in the two former suits and the decision of this court referred to in the amended complaint, because in that decision will be found a full statement and determination of the controversy. We are of the opinion that plaintiffs, as shown by their amended complaint, are precluded and
As to the complaint in conversion, after alleging sale and delivery of the chattels by appellants to the Pasco Theatre Company, it is then alleged:
“That the defendants herein immediately took and converted said described property to their own use subject to the plaintiffs’ lien and have at all times used and enjoyed the same without making any payment therefor to these plaintiffs or to any other party whatsoever. ’ ’
Thus -it appears that appellants did not have title, general or special, possession or right of possession of the chattels at the time of the commencement of the suit, and hence are not in a position to maintain an action in conversion. Binnian v. Baker, 6 Wash. 50, 32 Pac. 1008. Again, this very matter of the rights of John Ryzek and J. A. Ryzek to this personal property has been disposed of adversely to appellants heretofore, as shown by the decision of this court already mentioned.
As supplemental to the transcript in this case, respondents have furnished copies of the pleadings, orders and judgments in the two former cases between these parties and of the decision of this court. Appellants move to strike these from the record, claiming they are not properly a part of it. In the amended complaint, as already seen, they specifically refer to both of the other causes and the results therein, and also the decision of this court, and state that by such reference they make the same a part of their amended complaint. We do not commend this manner of pleading, but appellants are not in a position to object to the certified copies sought to be stricken. They only make plain, and in no sense alter the effect of, the amended complaint; and the same may be said of the
Judgment affirmed.
Main, C. J., Fullerton, Parker, and Tolman, JJ., concur.