Witte v. Old Nat. Bank of Spokane , 29 Wash. 2d 704 ( 1948 )

I dissent. I agree that the demurrer admits the truth of all well-pleaded facts, as well, also, as every legitimate inference deduced from such facts. Puget Mill Co. v. Duecy, 1 Wn.2d 421, 96 P.2d 571. While a demurrer admits the truth of all facts well pleaded, it does not admit conclusions of law, nor all conclusions which may be drawn from such facts by the pleader.

Within the four corners of the complaint, we find that appellant, in a subsequent action, seeks to recover expenses incident to another action he successfully prosecuted for the recovery of a legal right. We are committed to the rule that one who has brought a successful action for the recovery of a legal right may not successfully maintain a subsequent action to recover expenses incident to the first action. Choukas v.Severyns, 3 Wn.2d 71, 99 P.2d 942, 103 P.2d 1106.

The fraud alleged by appellant relates to matters of proof before the probate court in the prior proceeding, and not to fraud which was extrinsic or collateral to the issue being tried; hence appellant's allegations, if accepted as true, are not such allegations of fact as constitute a cause of action. In reBaker's Estate, 27 Wn.2d 933, 181 P.2d 826.

It is clear that the trial court was correct in sustaining the demurrer, admitting as true each and every allegation of appellant. No cause of action is stated.

SIMPSON, J., concurs with MILLARD, J.