Kirby v. Pease ( 1903 )

Mount, J.

This was an action to set aside a sale of real estate. It is alleged in the complaint, that in 1896 an action was commenced in the superior court of Pierce county wherein Henry Holgate was plaintiff and Samuel Parker and J. P. Kirby were defendants; that in February, 1898, before the issues were made up, the plaintiff therein, Henry Holgate, died and no administration was had upon his estate; that in the month of December, 1898, after the attention of the trial court had been called to the fact of the death of the plaintiff therein, a judgment was entered against the said defendant Kirby, and in favor of said Holgate; that on November 26, 1902, an execution was issued upon the said judgment, and the property described in the complaint was sold thereunder, and respondent Pease became the purchaser; that the judgment, and all proceedings had thereunder, were void because the plaintiff in the action was dead at the time the judgment was obtained.

When the respondents were served with the summons, they appeared and moved the court to dismiss the action, upon the ground that the action was “impertinent, vexatious, and contemptuous.” This motion wfis supported by an affidavit showing that the question involved was res adjudícala, in Holgate v. Parker et al., wherein the question of the death of Holgate had been litigated, and that the lower court had been prohibited by this court, in State ex rel. Holgate v. Superior Court, 21 Wash. 33, 56 Pac. 932, from again trying the question whether Holgate was dead at the time the judgment was rendered. This motion was sustained and the action dismissed. Plaintiff appeals.

The only question discussed upon this appeal is that the grounds stated in the motion for dismissal are not grounds recognized by statute. It is true that the grounds stated in the motion, viz., that the action is “impertinent, vexatious, and contemptuous,” are not designated by the code as grounds for the dismissal of an action. In fact, we find no provision of the code designating the grounds upon which an action may be dismissed. Any sufficient ground may therefore be stated. The affidavit accompanying the motion called the attention of the trial court to the fact that the parties to this action are the same, and the question of the death of Holgate the same, as in the case of State ex rel. Holgate v. Superior Court, wherein the trial court was prohibited from again trying that question. When these facts appeared, the trial court was certainly justified in dismissing the action. It could not be required by a party to an action to violate an order of this court.

The judgment is therefore affirmed.

Fullerton, O. J., and Hadley, Dunbar, and Anders, JJ., concur.