Bates v. Drake

Citations

• 28 Wash. 447
• 68 P. 961
• 1902 Wash. LEXIS 503

Syllabus

<p>ACTIONS-MISTAKE OF PLAINTIFF AS TO FOEM-WAIVES OF OBJECTIONS.</p> <p>Where defendants do not raise the objection until after trial that plaintiffs’ form of action should have been in ejectment instead of one to quiet title, because they were not in possession of the land, and the land was not vacant and unoccupied, the objection must be deemed as waived.</p> <p>SAME-ESTOPPEL OF DEFENDANTS.</p> <p>Where defendants, in an action to remove a cloud and quiet title, themselves submitted to the determination of the court by their answer the very issue appellants sought to submit, and obtained the relief for which they prayed, they cannot upon an appeal by plaintiffs therefrom be heard to say that the plaintiffs originally mistook their form of action.</p> <p>JUDGMENTS-EES JUDICATA.</p> <p>A judgment of dismissal of an action without prejudice would not have the effect of res judicata on the merits of the controversy even if the court erred in refusing to give judgment on the merits.</p> <p>FRAUDULENT CONVEYANCES-WHO ARE CREDITORS-CLAIMANT FOB DAMAGES.</p> <p>A person having a claim against another for damages sounding in tort is a creditor of that other within the meaning of the statute giving creditors the right to question transfers of property made to hinder, delay and defraud creditors.</p> <p>SAME-PLEADING-INSOLVENCY OF FRAUDULENT GRANTOR.</p> <p>In an action to recover land fraudulently conveyed the insolvency of the grantor is sufficiently alleged, as against a general objection to the complaint, where it alleges that the grantor had no other property in the state than that fraudulently transferred at any of the times mentioned in the complaint, out of which execution against him could he made.</p> <p>SAME-BURDEN OF PROOF — -SUFFICIENCY OF EVIDENCE.</p> <p>Under Bal. Code, § 4580, which provides. that in every case where any question arises as to the good faith of any transaction between husband and wife the burden of proof shall he upon the party asserting the