The opinion
Beals, J.
(dissenting) — In my opinion, a proper application of tbe doctrine of
res judicata
requires tbe affirmance of tbe judgment now before us for review. As stated by tbe majority, tbis doctrine applies with equal force, regardless of whether appellant appeared in tbe prior action or defaulted therein. It is also
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undoubtedly the rule, as stated by the majority, that a judgment
“ ... will operate as an estoppel not only as to questions of fact and law which were raised and decided in the action in which the judgment was rendered, but also as to all grounds of recovery or defense which might have been, but were not, presented and passed upon.”
White v. Miley,
138 Wash. 502 , 244 Pac. 986 , quoted in the majority opinion.
In the case of
Olson v. Title Trust Co.,
58 Wash. 599 , 109 Pac. 49 , it was held that a judgment rendered in favor of a vendor in an action brought by him to quiet title was
res judicata
as to a subsequent action instituted by the vendee for the purpose of recovering the payments made. Applying the doctrine of
res judicata,
this court said:
“Whether the money was paid upon the contract or for the land is immaterial. The money was paid by virtue of that contract, and the action brought by this respondent was for the purpose of enforcing the provisions of that contract, among which was the forfeiture of the money now in controversy as provided in the contract. That was one of the issues. It is plain that, if the right to forfeit this money was not litigated in that action, it should have been, and the rights of the parties thereto finally determined. The rule is that, in an action between the same parties, a judgment therein is
res judicata
as to all points in issue, and also all points which might have been raised and adjudicated.
Sayward v. Thayer,
9 Wash. 22 , 36 Pac. 966 , 38 Pac. 137 ;
Isensee v. Austin,
15 Wash. 352 , 46 Pac. 394 ;
Spokane Valley Land & Water Co. v. Jones & Co.,
53 Wash. 37 , 101 Pac. 515 .”
In the case of
Crabtree v. McDaniel,
143 Wash. 122 , 254 Pac. 1092 , this court quoted with approval from 34 C. J. 856, as follows:
“It is .a general rule that a valid judgment for plaintiff is conclusive not only as to defenses which .were set up and adjudicated, but also as to those which
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might have been
raised;
so that defendant can neither set np snch defenses in a second action or in further proceedings in the same action, nor can such defenses be used by the former defendant as the basis of a subsequent action against the former plaintiff.”
In a later ease between the same parties,
McDaniel v. Crabtree,
148 Wash. 549 , 269 Pac. 1040 , the doctrine of
res judicata
was considered and applied as to one phase of the case, and not as to another. The rule was held not to operate as a bar to an action upon a promissory note, the holder of the note not having brought the same into an action at law for damages based on alleged false representations which he had theretofore instituted against the maker of the note. It is stated that a different rule would have applied had the prior action been for rescission of an exchange of properties instead of an action at law for damages. It is also noted that the defendant in the prior action interposed only strictly legal defenses. The court applied the principle of
res judicata
in connection with another phase of the litigation, holding that, if one of the parties to a contract of exchange contended that the note of a third party, which he had received under the contract, was worthless, he should have presented that question in the prior action, and, not having done so, was bound to accept the note at its face value.
The New York case of
Mehlhop v. Central Union Trust Co.,
235 N. Y. 102 , 138 N. E. 751 , indicates that a somewhat different rule has been adopted in that state. In my opinion, our court has followed a different and better rule, from which I am not disposed to depart. I cannot concede that appellant’s claim here is “independent,” as stated by the majority. The prior action was instituted for the purpose of foreclosing the mortgage. The complaint gave credit for the payment made by appellant. Appellant was made
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a party to this action and served with process. If he wanted to recover the payment which he had made, that was an issue which he was bound to present in the foreclosure action. He failed to appear in the action, and allowed judgment to be taken upon a basis which he now contends was erroneous.
The matter which appellant herein seeks to litigate could, and, in my opinion, should, have been litigated in the foreclosure action, and the judgment appealed from, therefore, should be affirmed.
Main, Tolman, and Steinert, JJ., concur with Beals, J.