Sweeney v. Frank Waterhouse & Co.
Sweeney v. Frank Waterhouse & Co.
Opinion of the Court
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
“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 same
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
The demurrer to the affirmative defense was properly overruled, and the judgment is affirmed.
Mount, O. J., Crow, Budkin, Fullerton, and Hadley, JJ., concur.
Reference
- Full Case Name
- Edward F. Sweeney v. Frank Waterhouse & Company
- Cited By
- 13 cases
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- Published
- Syllabus
- Appeal — Record—Necessity oe Statement oe Facts. Upon a question of res adjudicate, tbe supreme court cannot take judicial notice of proceedings occurring in tbe first case, when not made a part of tbe statement of facts in tbe case before it. Judgment — Res Adjudícala — Burden of Proof. Where a former judgment is pleaded in bar, and there was nothing to indicate that such case was not tried upon tbe merits, it' devolves upon the opposite party to show such fact. .Same — Couclusiveiíess—Mattebs Withheld. A judgment dismissing on tfie merits an action for the nondelivery of freight for the reason that the plaintiffs had assigned the cargo before its arrival, is res adjudicata of another action between the same parties for the same cause, in which the complaint is the same except for an additional allegation to the effect that upon the neglect of the defendants to deliver the cargo to the assigns, such assigns had sold and assigned their claims for damages to the plaintiff, where such assignment was obtained prior to tbe first action, since such cause might have been litigated in the first- action, and cannot be withheld to split up the plaintiff’s causes.