Brice v. Starr

Citations

• 93 Wash. 501
• 161 P. 347
• 1916 Wash. LEXIS 1227

Syllabus

<p>Abatement and Revival — Another Action Pending. A subsequent suit cannot be pleaded in abatement of a prior action for the same cause.</p> <p>Actions — Joinder—Splitting Causes of Action — Waiver of Objection — Effect—Judgment—Bar. Where defendants submitted to the trial of a second action before trial of a prior action growing out of the same transaction, without moving for a consolidation and without raising any objection to the splitting of causes of action by the two suits, they waived the right to object and cannot plead the judgment in the second action as a bar to judgment in the first action, as to matters not actually tried and decided in the second action (overruling, on rehearing, Id., 90 Wash. 369).</p> <p>Judgment — Bar — Res Judicata — Matters Concluded. Where plaintiff, defrauded by defendants in a deal for lands, began two actions, the first to recover damages for the fraud, and the second asking cancellation of their deed for the same fraud without asking any money judgment, judgment in the second action, which was first tried, granting cancellation, is res judicata only of the matters actually tried and decided, and cannot be pleaded in bar of a money judgment in the first action, the defendants having failed to move for a consolidation of the actions or to object to the splitting of plaintiff’s cause of action (overruling, on rehearing, Id., 90 Wash. 369).</p> <p>Same. In the subsequent trial of the first action, it was not error to refuse the defendants the right to relitigate the issue of fraud, which was the only issue decided by the prior judgment in the second suit.</p>