Sweeney v. Frank Waterhouse & Co. , 43 Wash. 613 ( 1906 )

Dunbar, J.

Heretofore the appellants commenced an action in the superior court of King county against the retspondent, for the nondelivery of freight shipped hy appellants hy way of respondent’s ship “Garonne,” consigned to appellants at Home Anchorage, Alaska. It developed in the trial of said cause that appellants had assigned the cargo before its arrival at Home. A judgment was entered dismissing the action, which judgment was affirmed hy this court in the case of Sweeney v. Waterhouse & Co., 39 Wash. 501, 81 Pac. 1005. Thereafter the appellants commenced this action, alleging among other things that,

“After the refusal and neglect of the defendant to make delivery of such cargo to said assign, as herein alleged, that the said assign in writing for a valuable consideration duly sold, assigned and set over to plaintiffs any and all claims, causes of action and demands of whatever nature which said assign may have had against the defendant for damages or otherwise, arising out of said shipment and the failure of the defendant to make delivery thereof.”

The complaint in this action is in other particulars the same as the complaint in the former action, the parties are the same, and the subject-matter is the same¹. Por a third affirmative defense to this action the defendant, respondent here, pleaded the judgment in the former action, setting forth the pleadings and the judgment. To this defense a demurrer was interposed by the appellants, which was overruled by the court. The court held the judgment in the former action to be a bar to the action in this cause, judgment of dismissal was entered, and appeal taken.

Certain proceedings occurring in the first case are set forth in the brief of appellants, but of these things this court cannot take notice. They have not been made a part of the statement of facts in this case, and this court cannot take judicial notice of the statement of facts in a case not before it. So that the case comes here upon the showing made by the pleadings and the judgment pleaded in bar, and there is nothing in the judgment pleaded which indicates that the cause was not tried and decided upon the merits. If such was not the case, it devolved upon the appellants to show it.

It is hardly worth while to go into a discussion of the doctrine of res adjudicata and the cases cited thereon. This court has, in more recent cases, somewhat modified the doctrine as announced in the earlier cases, where the old rule was laid down that the plea of res adjudicata applies not only to points which were raised, but to those which might have been raised in the trial of the former action. But no court, we think, has gone so far as to allow a litigant to experiment with a court by trying his case piecemeal. The cause of action which the appellants now urge was available to them at the former trial, the assignments set forth in the complaint having been obtained prior to the commencement of the first action. They should not be allowed to split their causes of action, try their case out on a part of the causes and, if they fail, commence another action setting forth the other causes.

The demurrer to the affirmative defense was properly overruled, and the judgment is affirmed.

Mount, O. J., Crow, Budkin, Fullerton, and Hadley, JJ., concur.