261 P. 97 | Wash. | 1927
Lead Opinion
The former opinion proceeds upon the theory that the relator has an ample and adequate remedy by appeal, and that "the matter of abatement of a subsequent action in favor of a prior action is largely a matter of discretion in the trial court," and that this court will not interfere by extraordinary writ, relying on or citing Jansen v. Kolmitz,
More precisely, what occurred in the Jansen v. Kolmitz case, so far as it relates to abatement being discretional, was that Kolmitz commenced a suit against Jansen and others to have his signature upon a note declared to be a restricted, rather than an unrestricted endorsement. A few days before the trial *534 in that case, Jansen sued Kolmitz and others on the note and endorsement. This second suit was not tried until after the trial in the first suit, wherein findings and judgment were against Kolmitz. Then, shortly, when the Jansen v. Kolmitz case came on for trial, Kolmitz insisted that the trial should be postponed until the determination in the supreme court of the first case in which he had taken an appeal. The plea was denied, and upon the trial there was judgment against Kolmitz on his endorsement. He took an appeal in that case.
The two cases were tried so nearly together that the appeals were heard in this court at the same time, both assigned to the same judge, both opinions filed on the same day, and are reported immediately together in volume 130 of our reports. In the briefs in the Jansen v. Kolmitz case, which have been re-examined, considerable was said and authorities cited upon the subject of disfavor in the law of a tardy plea in abatement. It was under these circumstances that it was said in the opinion:
"This suit was brought a few days before the trial of the previous suit (Kolmitz v. Jansen), and the appellants contend that the trial court erred in not postponing the trial of this case until the determination in this court of that one. This was a matter addressed to the discretion of the trial court and we cannot say he abused it."
Immediately following, however, it was further stated:
"In any event, as the matter now stands, the appellants were not prejudiced by the ruling of the court."
[1] We cannot agree that the language referred to was intended, or that it has the effect of committing us to the rule that the granting or withholding of the right of abatement, seasonably preferred, as was done *535
in the present case, rests within the discretion of the trial court in view of Rem. Comp. Stat., §§ 259 and 261 [P.C. §§ 8346, 8348], together with what we said in Longmore v. Puget SoundTr., L. P. Co.,
"If the provisions of the statute to the effect that another action pending between the same parties upon the same cause of action means anything and is a defense, it seems clear that the court should have dismissed this action when the facts so appeared. This court, in common with other courts, has held that, where it is shown that another action is pending between the same parties upon the same cause of action, the later action will be abated. Tacoma v. Commercial Elec. L. P. Co.,
In the present situation, the action by the mortgagor was necessarily brought in King county under § 206, Rem. Comp. Stat., because that county was the place of business of the defendant bank, a corporation. McMaster v. Advance Thresher Co.,
It is stated in C.J., vol. 1, p. 82, § 107, to be the general rule that the plea of a prior action pending does not apply "to cases in which there are cross suits by a plaintiff in one suit who is defendant in the other." But it is further said that "in some jurisdictions, however, there are decisions to the contrary." Some of the cases cited in support of the last statement are: Kansas City S.R. Co. v. Railroad Commission,
"If there were other parties in the first suit not included in the subsequent one, it would not necessarily prevent the pendency of the former action from being a defense to the latter, nor would the fact that the parties, plaintiff and defendant, were reversed in the two suits prevent the defense, if the issue in the two were the same, and the same relief attainable;"
Crane v. Larsen,
[3, 4] The real question, therefore, is whether the mortgagee can have, in the King county action, the relief he seeks in the Snohomish county action. On behalf of the bank, the argument is that the foreclosure of the mortgage is a local action and that, under Rem. Comp. Stat., § 204 [P.C. § 8541], the bringing of an action for that purpose in the wrong county would amount to a want of jurisdiction of the subject-matter; and yet, the bank says
"There is no doubt but that, if the action to foreclose the mortgage had been brought in Seattle, a change of venue might be made under the statute,"
evidently having in mind Rem. Comp. Stat., § 209 [P.C. § 8545], which provides for a change of venue where suit is brought in the wrong county. The two propositions are antagonistic. If, in such case, the King county court would have jurisdiction and power to grant a change of venue, necessarily it would have jurisdiction and power to hear the case and enter a valid judgment on the merits, if no change of venue were asked.
In the case of State ex rel. Grays Harbor Commercial Co. v.Superior Court,
The bank relies on Diamond Ice Co. v. Klock Produce *539 Co.,
"In Diamond Ice Storage Co. v. Klock Produce Co.,
In the litigation between Jansen and Kolmitz, as hereinbefore stated, Kolmitz first sued Jansen for the sole purpose of having his endorsement on a note held by Jansen declared to be a restricted endorsement. That was the sole issue and they the only parties. A few days before the trial of that case, Jansen sued on the note making the maker of the note and two endorsers parties defendant. The court said:
"In the first place, the parties to these two actions were not the same. Mrs. Schelling, the maker of the note, was neither a party plaintiff nor defendant and was in no wise interested inthe litigation in Kolmitz v. Jansen."
And then, after discussing the difference in the issues in the two cases, said:
"It may be that the respondents here (Jansen) might by cross-complaint in the first case have obtained the relief sought in this suit, but they were not legally bound to do so becausethis action is independent of the other one."
In the present case, however, the two actions are not independent. Both involve the same mortgage. *540
If the plaintiffs prevail in the first suit, there can be no foreclosure of the mortgage at this time, if at all. On the contrary, if there is a valid mortgage ripe for foreclosure, it can be foreclosed in the King county action. Subdiv. 1 of § 204, Rem. Comp. Stat., makes causes for the recovery, possession, partition, foreclosure of a mortgage on, or the determination of all questions affecting the title or for injuries to real property, local to the county wherein the property or some part of it is situated. It is to be observed, however, that subdiv. 2 of the same section makes the same provision with reference to the possession or title to any specific article of personal property. State ex rel. Hendron v. Superior Court,
Both kinds of action, whether they relate to real or personal property, are local. In State ex rel. Christensen v. SuperiorCourt,
[5] As to the identity of the parties to these present actions, the question is, are the parties in interest *541 the same? If so, the second action must be abated, regardless of the fact that the nominal parties are not identical. 1 C.J., p. 80, § 104. Here the parties to the first suit are, as plaintiffs, the mortgagor and its officers through whom the deal was made and the mortgage executed; and as defendants, the mortgagee and another alleged to be beneficially interested with the nominal mortgagee; while, as to the second suit, the parties plaintiff and defendant are, respectively, the nominal mortgagee and mortgagor. The real parties in interest are substantially the same. In our opinion, the plea in abatement should be sustained.
[6] It is further contended on behalf of the respondents that there is a plain, speedy and adequate remedy by appeal, and that prohibition will not lie. But as said in State ex rel.Martin v. Superior Court,
"If it be held that a court having jurisdiction may erroneously exercise that jurisdiction, and that its rulings might be adequately reviewed on appeal, it does not follow that the court may so proceed in all cases without denying to a litigant that speed and adequacy of remedy which is sanctioned and guaranteed by the statute."
Resort to the remedy by appeal will in no way prevent the vexation and multiplicity of suits intended to be promptly overcome by the seasonable plea of another action pending, nor avoid in that ample and speedy manner contemplated by statute the confusion and embarrassment incident to the trying of one part of the case in one county and another part in another county.
Writ granted with directions to the trial court to sustain the plea in abatement and dismiss the action.
MACKINTOSH, C.J., MAIN, FULLERTON, ASKREN, and FRENCH, JJ., concur. *542
Dissenting Opinion
I adhere to the views stated in
PARKER, J., concurs with HOLCOMB, J.
TOLMAN, J., dissents.