Wilkes v. Davies

23 L.R.A. 103, 35 P. 611, 8 Wash. 112, 1894 Wash. LEXIS 21

• Court: Washington Supreme Court
• Decided: January 22, 1894
• Docket: No. 900
• Status: Published

Opinions

The opinion of the court was delivered by

Dunbar, C. J.

— This was an action at law to recover the alleged value of improvements on school land. The plaintiff alleged his possession of said lands by virtue of a lease from the county commissioners of King county; the appraisement of the land by the county commissioners, under the act to provide for the sale and leasing of school lands, approved March 28, 1890 (Laws 1889-90, p. 438), and all the subsequent steps taken by the commissioners under said law. He alleged that the defendant Davies was the highest and best bidder for the land upon which the plaintiff’s improvements rested, and alleges that in appraising said lands the county commissioners of King county, although at the time having full knowledge and notice of the fact that plaintiff had improvements thereon and of their value, and that the plaintiff was the owner of said improvements and living thereon, arbitrarily and without just cause, failed and refused to appraise or value the improvements made by the plaintiff as aforesaid upon the land, and failed and refused to set down the value of said improvements upon the land so appraised, and to report the same as required by law. The complaint also alleged the value of the improvements and asked for judgment for that amount.

The complaint is a long one, but we think we have stated sufficient of it for the purposes of this decision. Upon the trial of the cause the defendant objected to the introduction of any testimony by the plaintiff, for the reason that the complaint did not state a cause of action. The court sustained the motion, and the plaintiff, standing on his complaint, appeals. So that the only question before the court is the sufficiency of the complaint.

The first and main contention for the respondent is, that the plaintiff being in possession of the improvements, not having delivered them to defendant, he could not recover their value from defendant. We cannot agree with this contention of respondent. We think the law accords to him, without any question or peradventure, the value of his improvements upon the sale of the land, and that he should not be compelled to yield up possession and depend upon a personal judgment, which might prove inadequate or entirely worthless. Neither do we think the law will compel him to remain upon the land awaiting the pleasure of the purchaser to take possession of the premises and the improvements.

There is another proposition in the case, however, that is vastly more troublesome, namely, whether or not the appellant is precluded by the action of the county commissioners in reporting no improvements upon the land, and what appellant’s remedies and rights are under such circumstances, if he have any. Although the court entertains grave doubts upon these propositions, yet we think it is unnecessary to determine them in this case. Substantially this same case was before the court, and this statute (Gen. Stat., title 24, ch. 1) was construed, in Wilkes v. Hunt, Griffith Davies, F. A. Twitchell and W. T. Forrest, reported in 4 Wash. 100. In discussing the statute now under consideration, the court, in its opinion rendered in that case, said:

“To maintain injunction against anyone the plaintiff must make sure that he has not some other adequate remedy, and this is none the less the rule when an officer of the state is the person sought to be enjoined, and the object of the injunction is to prevent his performing a statutory duty. In this case the appellant shows that there was no appraisement of his improvements, and that, therefore, the purchasers from the state will take title to the land without paying him for their value, as the statute says he shall do within thirty days. Were we clear that such results would follow we should feel inclined to reverse the judgment, since it is plain that the intention of the statute is to reimburse persons situated as the appellant avers himself to be. But he seems to have not only one, but even two other remedies, either of which would save him harmless. In the first place, if there has been no compliance with the statute by the appraisement of his impi’ovements, certainly no court would permit a purchaser under those circumstances to interfere with his possession of the land until he is compensated as the law requires. Secondly, the purchaser is required to pay the appraised value to the owner of the improvements; that is, he is the debtor of the owner to that amount, and must pay it within thirty days. He can be sued for the debt, and if there has been no appraisement, the court and a jury can fix the reasonable value as well as the commissioners. With such a wealth of remedies at his hand we think the state should be permitted to proceed with its business without the hindrance of an injunction, and the judgment is, therefore, affirmed.”

By reference to the record in the case of Wilkes v. Hunt, 4 Wash. 100 (29 Pac. 830), it will be seen that the parties in interest in that case were the identical parties in interest in this action, it being alleged in that action that Hunt was the agent for Davies, the defendant in the action at bar, in bidding in the land. That action was against both Hunt and Davies. It is true that the land commissioners were necessarily made parties defendant to the action, but it was equally true .that they were not the parties in interest, and under the theory of the plaintiff in that action it was necessary that the commissioners should be made a vehicle to convey him into court to obtain an adjudication of his right with Hunt and Davies. That adjudication could only affect the parties in interest, namely, Wilkes on the one side and Hunt and Davies on the other. Afterwards Davies was substituted for Hunt as the purchaser, so that it will be seen that the parties to this suit were the parties to that.

The next question is, was the subj ect matter of the litigation the same. The object of the first action was to obtain the value of the improvements on the land by enjoining the sale until such improvements were paid for. The avowed object of this action is to obtain the value of the same improvements. The complaints in both actions are the same; the same state of facts is alleged, and by referring to appellant’s brief in the former action, the respondent not appearing, it will be seen that the injunctive relief there sought was sought on the theory that no legal relief was available. We quote from appellant’s argument, on page 23 of the brief:

‘ ‘ Since the title to the land would pass to the purchaser from the state by this contract and patent, if delivered, the plaintiff having only the right to be paid the appraised value of his improvements, he could interpose no defense to an action by the purchaser to recover possession of the lands and improvements. He could not recover the value of his improvements from the state, nor could he compel the purchaser to pay for them, for the reason that no valuation had been placed upon them by the commissioners. How then can he be protected except by injunction?”

So that it will be seen that the very question raised by the respondent in this case, namely, that the complaint did not state facts sufficient to constitute a cause of action, was before the court in that case, and one of the grounds alleged by the court for refusing the equitable relief asked for, was the ground that the plaintiff was entitled to the relief asked for in this action. So that the question involved here was directly before the court and passed upon by the court in Wilkes v. Hunt, and the court in its opinion plainly states that the judgment in that case was based upon its construction of the statute on the questions raised in the case now before the court; and while it may be that the case might have been decided on some other ground, these questions were involved in the case, were considered and decided by this court, and such consideration and decision on these points, decided the former case. So says this court in its opinion. This was in no sense obiter dictum, but was the decision on one of the points involved in the case.

The plaintiff in this action, relying upon the rule laid down by the court, has brought himself squarely within it, and the decision of this court, whether right or wrong, must bind the parties to the action in which it was rendered, and becomes the law of the case. Whether or not the judgment in the former case was res adjudicata so far as the public is concerned in the way of a precedent, it is not necessary to determine, for there is a well defined distinction between the doctrine of res adjudicata in that sense and the doctrine of res adgudñcata in its application exclusively to the parties to the action. The general rule is, that the judgment of a competent court is binding and conclusive upon the parties, and will not be reversed or reviewed by any court possessing concurrent jurisdiction. It is not only binding and conclusive as to all questions of law and fact that were made upon the first trial, but as to all questions of law and fact which, from the organization and powers of the court, might have been submitted. Wells on Ees Ad judicata and Stare Decisis, § 424.

In Davidson v. Dallas, 15 Cal. 75, the court, in referring to a case which had been before it and had been decided at a previous trial, says:

‘ ‘ This view of the case is conclusive of this appeal. The same facts are brought before the court now as when the case was heard and decided here. The agreement was before the court between Dallas and Grilsen, and the effect of it was passed upon.”

In Thomason v. Dill, 34 Ala. 175, it was decided that a decision of the supreme court is the law of the case in which it was announced, and is conclusive both in the primary court and on a second appeal; and by the supreme court of Indiana, in Hawley, Administrator, v. Smith, Administrator, 45 Ind. 183:

“When the supreme court has laid down a rule of law, it will adhere to it in a subsequent action between the same parties, where a different decision would leave one party without remedy, even though doubtful of the correctness of the rule when applied to other cases. ’ ’

In Stacy v. Vermont Central R. R. Co., 32 Vt. 551, the rule was announced that the supreme court would not revise a former decision made by the same court in the same cause and on substantially the same state of facts. Said the court:

“Upon carefully examining the original bill of exceptions that was then before the court, and comparing it with, the one now before us, we are wholly unable to discover in this case any fact material to its determination that was not contained in that. The facts are stated with more particularity now than then, but substantially they are the same. We find no such alteration of, or addition to, the facts, as calls for the application of any different rules of law from what the case then required.5 ’

And so with the cases under consideration. The complaints are substantially identical, and consequently call for the application of no different rules of law or modes of construction. This rule is so obviously based upon the plainest principles of justice and fair dealing that it has been decided by the supreme court of the United States in Washington Bridge Co. v. Stewart, 3 How. 413, that after a case has been decided on its merits and l’emanded to the court below, and is again brought up on a second appeal, it is then too late to allege even that the court had no jurisdiction to try the first appeal; virtually holding as the law of the case a decision of a court without jurisdiction. This case has been followed by the appellate courts in many of the states.

In Clary v. Hoagland, 6 Cal. 685, it was decided that when a case has been once taken to an appellate court and its judgment obtained on the points of law involved, such judgment, however erroneous, becomes the law of the case; and that this rule applies not only to questions of law arising out of the case, but to questions of jurisdiction. And while the case at bar was not brought here on appeal directly as a matter of record the second time, yet in fact and in effect it is here for all the purposes of the case exactly as though it were brought here on a second appeal.

Dugan v. Hollins, 13 Md. 149, is a case where the parties to the second action were not nominally the parties to the first action; but the same questions were adjudicated in both cases, and the same law points involved, just as in the action at bar, and it is a case in point so far as parties to the action are concerned. There the court said:

‘! The present defendants . . . were the plaintiffs in the suit against Coonan, reported in 9 Gill, 62. That case, inform, was an action of assumpsit, to recover rent for the house now in dispute, but in reality was designed to obtain a decision upon the title to the property under the will of Cumberland Dugan, sr. This is evident from the admission stated on page 66.”

Analogous to this, the case of Wilkes v. Hunt was in form an equitable proceeding, but it was in reality designed to obtain a construction of the statute in relation to the rights of owners of improvements on school land.

Quoting again from Dugan v. Hollins, the court said:

“As regards the effect or influence of the former decision upon the present case, it will be seen to be quite immaterial whether it shall be considered as an estoppel or as a decision by the court of last resort, giving an interpretation to the clauses in the will of Cumberland Dugan, sr., in relation to the same property now in dispute, and where the same question arises, which was before decided.”

And so we say again that the decision in the case of Wilkes v. Hunt was an interpretation of the clauses in the statute with reference to improvements on school land, and in relation to the particular improvements now in dispute; and that the same questions arise in the case at bar which were before decided; and we again adopt the language of the court in that case and apply it to the case at bar when we say “the same property, the same statute and the same questions arising upon similar facts which were presented in the former case are also before us in this.” We therefore think the following quotation from Hammond's Lessee v. Inloes, 4 Md. 138, would constitute a very appropriate closing for us:

“We have not been able to discover a sufficient reason for making this an exception to the almost uninterrupted practice of all courts, of receiving their own decisions as of binding force. ’5

In the appeal of Thomson and others in the case of Winn v. Albert, 15 Md. 268, the court decided that where the court of appeal has declared a deed of trust for the benefit of creditors to be void, that decision is the law of the case and must govern in all further proceedings in the same case, notwithstanding a different decision upon a similar deed may have been subsequently made by the court in another case. And this also was a case where the parties to the last action were not, in form, parties to the action in the former case.

Such also was the condition in the case of Eugene Tuttle v. Orrin Garrett et al., 74 Ill. 444. The parties to the action, the decision of which was held to be stare decisis, were John G. Tuttle et al., plaintiff in error, v. Augustus O. Garrett, defendant in error; but the court held in the latter case that it was substantially the same case, and that the court was concluded by its decision in the former case.

The supreme court of the United States, in Aurora City v. West, 7 Wall. 82, lays down the rule as follows:

“Courts of justice, in stating the rule, do not always employ the same language; but where every objection ui’ged in the second suit was open to the party within the legitimate scope of the pleadings in the first suit, and might have been presented in that trial, the matter must be considered as having passed in rem judicatura, and the former judgment in such a case is conclusive between the parties. Except in special cases, the plea of res judicata,■ says Taylor, applies not only to points upon which the court was actually required to form an opinion and pronounce 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.”

And referring to Packet Co. v. Sickles, 24 How. 341, the court said:

‘ ‘Attempt was made in that case, as in this, to maintain that the judgment in the first suit could not be held to be an estoppel, unless it was shown by the record that the very point in controversy was distinctly presented by an issue, and that it was explicitly found by the jury; but the court held otherwise. ’ ’

It seems to us that this high authority is decisive of the case at bar, for if the contention of the respondent in this cause in regard to the construction of the statute is correct, it would have been a complete answer to the complaint in the former action. It is true that the plea of res adjudicada was not presented by the pleadings, nor was it offered in proof under the general issue, which are the two ordinary ways of bringing this question to the notice of the court.

But this case falls within the rule laid down by many courts where no opportunity to plead the former adjudication is presented. The plaintiff brought his action in accordance with his legal rights as pronounced by this court. He could not very well plead an estoppel in his complaint. The defendant answered, but his answer was a denial of the facts alleged in the complaint. No question of law was raised by the answer to render the plea of an estoppel necessary by reply. It denied that the plaintiff had the improvements which he alleged he had; denied that he lived on the land or that he was in possession of the land as averred in the complaint; denied that the lands were advertised for .sale as alleged; denied that either the defendant or his assigns were claiming the right to take plaintiff’s improvements without compensation; but averred that all the plaintiff’s improvements had been duly and regularly appraised, and compensation made therefor in the sum of $600, and that plaintiff had accepted and received said sum.

There was much more to the same effect in the answer, but it only put in issue questions of fact, and informed the plaintiff that these facts must be substantiated by proof. This court had not passed upon any question of fact in the case. If it had, such decision could have been pleaded as res adjudicaba to the answer. But there was certainly no opportunity to plead res adjudicaba of any decision of the court on the law involved. Neither was there any opportunity to offer such a plea in evidence, even if it had been admissible to have done more than to have cited the court to the decision; for the case was really disposed of on demurrer, or a motion which was equivalent to a demurrer to the complaint; for after the jury was empaneled the defendant objected to the introduction of any evidence, on the ground that the complaint did not state facts sufficient to constitute a cause of action, and the plaintiff was deprived of the right to introduce evidence of any kind by the action of the court in sustaining the motion. But, in any event, this objection was not raised here, and we will not raise it for the parties. Both cases are matters of record in this court, and the coui’t can take judicial notice of its own records.

But further it was made a direct issue by the bxief of appellant ixx this court, and is the only matter which is discussed in the brief. No objection was made in the respondent’s axxswex’ing brief to the consideration of this question, or in oral argument to its discussion. In fact, it was claimed by respondent in his brief that the case of Wilkes v. Hunt was res adjudicaba, to the effect that the plaintiff could not hold possession of the land and at the same time recover its value in a suit at law. Both parties, therefore, conceded it to be res adjudícala, and treated it as such, but placed different constructions upon the decision.

In consideration of the importance of this statute ixx its effect upon the public, and of the doubt that is at present in the minds of the court as to whether the construction placed upon it in Wilkes v. Hunt was the proper construction, we will not pass upon that question now, nor consider ourselves bound by it in any independent cases; but having so construed the statute in a case in which the identical parties to this action were the parties in interest, and the identical property here involved was involved, so far as this case is concerned we feel ourselves bound by the decision therein rendered, and by the opinion therein expressed; and on this ground the judgment will be reversed, and the case remanded to the lower court with instructions to proceed in accordance with this opinion.

Stiles, Scott and Anders, JJ., concur.