105 Wash. 628 | Wash. | 1919
The appellants, as plaintiffs below, on November 19, 1910, filed their complaint in an action
Nothing further was done in the case for several years, and finally, on May 4, 1916, defendants moved to dismiss plaintiffs’ complaint for want of prosecution, which motion was denied. Afterwards, upon leave of court, defendants filed an amended answer consisting of: (1) Denial of plaintiffs’ claim; (2) Deraignment of title from the government, substantially as set forth in the original answer; (3) Payment of taxes in good faith for a period of seven successive years under color of title; (4) Estoppel by res judicata, in that, in a suit between the Kent Lumber Company and Arthur Clark (who was defendants’ grantor) involving title to the same lands, Clark had been adjudged to have a merchantable title in fee simple, and that George H. Saar was identified with the Kent Lumber Company in any title it had or
Plaintiffs moved to make the answer more definite and certain, and demanded an inspection or copy of a written agreement between Maggie Thrasher and Clark, referred to in the first affirmative defense; and the court having granted the motion to make definite and certain, in part, and denied inspection, a second amended answer was filed, setting up the same defenses as hereinbefore outlined.
Plaintiffs demurred to the fourth and fifth affirmative defenses, as set up in the second amended answer, which demurrers were overruled; and thereafter they replied, with appropriate denials, and set up new matter not inconsistent with their complaint. Thereafter the defendants served and filed forty-four interrogatories, addressed to the plaintiffs, who answered two, and moved to strike all of the remainder. The motion to strike was denied. Plaintiffs failed to answer any of the remaining forty-two interrogatories; and thereafter defendants moved to strike from the files the plaintiffs’ complaint, bill of particulars, replies, etc., and asked for judgment of dismissal, and for costs, because of plaintiffs’ failure and refusal to answer such interrogatories. This motion was granted, plaintiffs’ pleadings were stricken, the case dismissed, and a judgment entered in favor of defendants for costs, from which judgment this appeal is taken.
It is next complained that the court erred in refusing to allow an inspection of the written agreement alleged in the deraignment of title to have been made between Maggie Thrasher and Arthur Clark. But since, on motion being made for such inspection, the defendants struck all reference to the written agreement from their answer, we cannot say that the court erred; and assuredly it did not by its ruling injure plaintiffs, because, in their reply, they set out what purports to be a verbatim copy of this same agreement, and hence needed no inspection.
Nor can we find that the trial court erred in overruling the demurrers to the affirmative answers. The fourth affirmative answer pleads that the judgment in the case of Kent Lumber Company v. Clark, was rendered upon the issue of whether or not Arthur Clark, who conveyed to defendant by deed of general warranty, had a merchantable title in fee to the lands in question; and that George H. Saar, one of the plaintiffs in this suit, was identified in interest with the Kent Lumber Company in that suit. We think this answer stated facts constituting a defense, under the law as laid down- by this court in Smalley v. Laugenour, 30 Wash. 307, 70 Pac. 786; Nunn v. Mather, 60 Wash. 484, 111 Pac. 566; and State ex rel. Olding v. Stampfly, 69 Wash. 368, 125 Pac. 148.
The demurrer to the fifth affirmative defense was also properly overruled.
See, also, Hanold v. Bacon, 36 Mich. 1; Gates v. Kelley, 15 N. D. 639, 110 N. W. 770; Larmon v. Knight, 140 Ill. 232, 29 N. E. 1116, 33 Am. St. 229; Rollins v. Mitchell, 52 Minn. 41, 53 N. W. 1020, 38 Am. St. 519.
After a careful examination of the interrogatories submitted by the defendants, in connection with the defenses raised by the several answers, we are satisfied that they called for the discovery of facts material to support the defenses; and even under the rule laid down by this court in Lawson v. Black Diamond Coal Min. Co., 44 Wash. 26, 86. Pac. 1120, upon which plaintiffs chiefly rely, there was no error in the ruling complained of. The interrogatories calling for facts material to the defenses, and plaintiffs refusing to make answer, the court could not do otherwise than grant the motion to dismiss.
The judgment appealed from is affirmed.
Chadwick, C. J., Mitchell, Main, and Mackintosh, JJ., concur.