Sayward v. Thayer , 9 Wash. 22 ( 1894 )

The opinion of the court was delivered by

Dunbar, C. J.

— Some time during the year 1891, respondents Maitland and Weedin, who were execution creditors of defendant Thayer, levied upon certain logs through the agency of the sheriff of Island county. The appellant Sayward claimed to be the owner and in possession of said logs, and brought suit in Island county on said claim, by filing his affidavit and bond under the statute, and took said logs from the sheriff. Upon the trial of the case the jury returned a verdict in favor of defendants, the respondents here, for the return of the property, or in case it could not be returned, for its value. Sayward bases his claim of ownership upon a written instrument which he claims was an absolute bill of sale, claiming that under said bill of sale he had taken possession of and conducted the logging camp at which the logs were cut, while the contention of defendants in that action was that the instrument claimed to be a bill of sale was in reality a chattel mortgage. Judgment was rendered in conformity with the verdict of the jury, from which judgment an appeal was taken to this court, and upon its investigation here the judgment of the lower court was affirmed.

After the affirmance of said judgment Say ward brought another action to foreclose his lien on the property aforesaid which he claimed had attached by reason of the written instrument aforesaid, asking the court at the commencement of the action to restrain the sheriff and respondents from the collection of the judgment rendered in the former proceeding until after the determination of this action. A temporary restraining order was granted by the court which, upon hearing, was dissolved. Respondents interposed a demurrer to the complaint, which was sustained by the court. ' Appellants resting upon their complaint, j udgment was entered, and from the action of the court in refusing to grant a l’estraining order, and in sustaining the demurrer, the plaintiffs appeal.

The complaint is too long for reproduction, but it set forth the indebtedness alleged, the bill of sale, the judgment of the superior court in the former suit, and the judgment of this court in said suit, which was entitled W. P. Sayward, H. C. Mercer and Nathan Bucklin, appellants, v. Thomas Nunan, Alexander Maitland and W. J. Weedin, respondents, and is reported in 6 Wash. 87.

It seems to us that the demurrer to this complaint was properly sustained on the ground that there was no allegation of a chattel mortgage ever having been executed. It is true the complaint recites that this court had decided that the plaintiff was but a mortgagee, and not sole owner of the property, as shown by the instrument claimed to have been an absolute bill of sale, but there is no allegation that we can find in this lengthy complaint that defendant Thayer ever executed or delivered to the plaintiffs a chattel mortgage, but the allegation is that the plaintiffs were the sole owners of said property by reason of said bill of sale and by reason of possession thereunder, and that the respondents knew that fact at the time of the levy.

The main contention of the respondents, however, is that the case of Sayward v. Nunan, 6 Wash. 87 (32 Pac. 1022), is res judicata of the case at bar, and this point, we think, is well taken, for while there is considerable conflict of authority on this branch of the law of estoppel, we think there can be found no case so liberal as to allow a reinvestigation by the courts of a case like this.

We have examined the cases cited by appellants, and do not think they sustain their contention. The general doctrine is that the plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. This rule was announced in the case of Henderson v. Henderson, 3 Hare, 100, which is cited and commented upon by the supreme court of the United States, in Cromwell v. County of Sac, 94 U. S. 351, a leading case on this subject, and the court in quoting this language says:

“There is nothing in this language, applied to the facts of the case, which gives support to the doctrine that, whenever in one action a party might have brought forward a particular ground of recovery or defense, and neglected to do so, he is, in a subsequent suit between the same parties upon a different cause of action, precluded from availing himself of such ground. ’ ’

And the court proceeds in the case of Cromwell v. County of Sac, supra, a case which was cited by appellants in this case, to apply the principles enunciated by the case quoted from to the case before the court, and to say that —

"Various considerations, other than the actual merits, may govern a party in bringing forward grounds of recovery or defense in one action, which may not exist in another action upon a different demand, such as the smallness of the amount or the value of the property in controversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and his own situation at the time. ”

But none of those considerations can be made applicable, or brought to bear in this case. While it is true that it was determined in the former action that the instrument in question was not a bill of sale, yet the object of that action was not merely to obtain the naked possession of the property in dispute, but was to prevent its subjugation to the execution of the judgment creditors. Sayward alleged ownership of the property by reason of this bill of sale, while the contention of the respondents was that they had a right to sell the property, and have the proceeds applied on their judgment. It would be barren litigation, indeed, to determine by expensive litigation that Sayward was not entitled to the possession of these logs, if, after the determination of that question, the same forum would deprive the judgment creditors of the fruits of their litigation. The same instrument upon which Sayward founded his claim in that case is the basis for his action in this case. The judgment was that he return the property, or if that could not be done, then he should pay the amount due on said execution to the execution creditors, amounting in all to the s\im of Si, 148, that is the judgment pronounced by the superior court and affirmed by this court. It appears from the complaint in this action that the property was not returned, but was retained by Sayward. This was the obligation he took upon himself when he commenced the action, viz., to return the property or pay the value thereof, and if this judgment so rendered and so affirmed by the appellate court is to be rendered useless and of no avail, until some other case which appellant sees fit to institute is determined by the same court, then the doctrine that the law does not favor multifarious suits certainly will not obtain.

The judgment in the former case was the determination of the rights of the parties as to this particular property. The determination was that it should be subjected to the payment of the judgment obtained by the execution creditors, and that judgment is final and conclusive. Under our system of pleading the appellants had a right to have all their rights determined in one action. The presumption is that they were determined, and that the litigation was ended when the judgment was rendered. In addition to this, it almost conclusively appears from the language used by this court in the case of Sayward v. Nunan, supra, that the appellants are precluded from a recovery in this action on another ground, for, says the court:

“Furthermore, it is questionable, at least, if said instrument was merely given as security, whether the recording of it would help the appellants’ claim in any way. If it is to be treated as a mortgage, § 1648, Gen. Stat., provides that a chattel mortgage shall be void against creditors of the mortgagor or subsequent purchaser and ‘ incumbrances’ of the property for value and in good faith, unless it is accompanied by an affidavit of the mortgagor that it is made in good faith, and without any design to hinder, delay or defraud creditors, and is acknowledged and recorded in the same manner as is required by law in the conveyance of real property. This instrument was not so executed. To hold that the affidavit and acknowledgment are not required where a bill of sale is given as security and is in effect a mortgage, would be to render such provisions of the law in relation to chattel mortgages nugatory, for the same could be avoided and fictitious claims created and spread upon the records by giving a mere bill of sale — a fraudulent device — instead of a mortgage. Jones, Chat. Mort., § 275; Shaw v. Wilshire, 65 Me. 485; Bird v. Wilkinson, 4 Leigh, 266 — 274; First National Bank v. Damm, 63 Wis. 249 (23 N.W. 497); Yenni v. McNamee, 45 N.Y. 614.”

It seems to us that the language of the statute leaves little or no room for construction, and the legislative will-is plainly expressed, and that, unless the mortgage is accompanied by the affidavit prescribed, as against creditors, or subsequent purchasers or incumbrancers for value and in good faith, the instrument is void; so that in any event, it having been decided by this court that the instrument in question was not a bill of sale, and that construed as a chattel mortgage it is void as against the respondents in this action, the plaintiffs must necessarily fail in their action.

The judgment is, therefore, affirmed.

Scott and Stiles, JJ., concur.