Taylor v. Gale

The opinion of the court was delivered by Dunbar, J. This is a suit to establish a claim presented by the appellant to the respondent, as the administratrix of the estate of John P. Grale, and by her rejected. The court decided that the claim presented to the administratrix was not properly verified to entitle it to allow [338] anee, and judgment was entered against the plaintiff on this theory, and the decision of the court in this respect is the error assigned hy the appellant here. It was claimed here, that the question of the sufficiency of these verifications was decided hy this court in Taylor v. Gale, 14 Wash. 57 (44 Pac. 110), and the doctrine of res adjudícala is invoked; and the brief of the respondent in said case was offered in evidence by the appellant in the case at bar in support of his contention that the question had been formerly adjudicated. We have examined the case in 14th Washington and the briefs upon which that decision was rendered; and while it does not appear in the opinion that the question of the sufficiency of the verification to the claim was passed npon, and while, of course, the court has no recollection of what the view of the court in that respect was at that time, the brief of the respondent in that case shows plainly that the court must have considered that proposition, and passed upon it in favor of the appellant’s contention. It is true, this question was not raised by the appellant in his brief; but there was no occasion for him to raise it, as the trial court at the former trial had passed upon that question in his favor, and had admitted the claims in evidence. It was, however, raised by the respondent, and argued as a material question in the case; the insistence being that, no matter what the views of the .court might be on the errors alleged, a new trial would not be granted, for the reason that the lower court had erred in its admission of the claims,. and that plaintiff’s case would fail in any event, for that reason. Subdivision 4 on page 35 of the respondent’s brief on the former appeal, commences with this language: “If in no event the appealing party is entitled to recover, a new trial will not be granted, even though reversible error should have - occurred during the trial.” The remainder of the brief [339] is devoted to an argument against the legality of the claim, hy reason of the insufficiency of the verification. This proposition was then answered by an argument in the reply brief of the appellant. The argument of the respondent on this proposition was somewhat exhaustive, and many authorities were cited to sustain the contention. From this it is evident that the court must have concluded (although for some reason no expression was made in the opinion to that effect) that no error had been committed hy the lower court in admitting the claim; for it would be not only a foolish hut harmful practice to reverse a case and order a new trial, and put the appellant to the delay and expense of a new trial, when it would necessarily follow that the trial could not result in a judgment in his favor. That is exactly what was said hy the respondent in his brief on the former appeal when he used the language quoted above. This is so plain a proposition, and has been so often enunciated hy this court, that it will not he presumed that an order for a new trial was made on the presumption that the appealing party was not entitled to recover in any event. It is said hy the réspondent in his brief in this case that “numerous opinions have been rendered hy this court wherein it is expressly stated that the court expressly refuses to pass upon questions raised for the reason that the same may not again arise upon a retrial of the case.” That is true, hut the admission of these claims is a pivotal question in this case, and one that must necessarily arise in the proper defense of the action, and does not fall within the class of incidental errors in the admission of testimony, or rejection of jurors, or questions of that kind, which the court was discussing in the cases referred to hy counsel’s brief. The judgment will he reversed and the cause remanded, with instructions to overrule defendant’s objections to the [340] admission of the claim in evidence on all the grounds urged. Reavis, O. J., and Fullebton, Andebs and White, JJ., concur.