[No. 35007. Department Two. Supreme Court January 28, 1960.]
MALCOLM M. STEWART et al., Appellants, v. AGNES SMITH,
Respondent.«1»
[1] APPEAL AND ERROR - REVIEW - FINDINGS. Where the findings of a trial court are based upon conflicting evidence, the appellate function begins and ends with the determination of whether the findings are supported by substantial evidence, and the Supreme Court will not retry questions of fact involving the substitution of its judgment for that of the trial court.
[2] DISMISSAL AND NONSUIT - INVOLUNTARY NONSUIT - OPERATION AND EFFECT - DISMISSAL WITH PREJUDICE. A trial court may enter a judgment of dismissal with prejudice after the trial of a case on its merits, since all evidence that the plaintiff has to offer in support of his claim is before the court at this time, and the defendant is entitled to a judgment that would be res judicata and finally settle the controversy.
Appeal from a judgment of the Superior Court for Grays Harbor county, No. 49418, Mitchell G. Kalin, J., entered November 14, 1958, upon findings in favor of the defendant, dismissing with prejudice an action for damage to real property. Affirmed.
James M. Stewart, for appellants.
Paul O. Manley, for respondent.
FINLEY, J. -
The parties to this action are owners of adjoining lots in the city of Aberdeen. The plaintiffs seek to recover damages for an alleged undermining of lateral support, claiming that the defendant, her deceased husband, or their predecessors in interest, had by excavation created an earth bank between the two lots, and that this bank had not been properly retained, with the result that earth from the plaintiffs' land had slipped or sloughed off during the period immediately prior to the commencement of this action.
On the basis of conflicting evidence, the trial judge entered findings to the effect that (1) the bank in question
«1» Reported in 348 P. (2d) 970.
[2] See Ann. 149 A. L. R. 625; Am. Jur., Dismissal, Discontinuance, and Nonsuit, § 106.
564 STEWART v. SMITH. [55 Wn. (2d)
had not been excavated by the defendant, her husband, or their predecessors: (2) that the bank had not been improperly retained; and (3) that such slippage as had occurred "was due to the removal of ivy and other natural growth by the plaintiffs." He thereupon dismissed the action with prejudice.
[1] With one exception, the appellants' assignments of error relate to the findings of fact. As noted above, these findings were based upon conflicting evidence. In such a case the appellate function begins and ends with a determination of whether the findings are supported by substantial evidence. We will not re-try questions of fact involving substitution of our judgment for that of the trial court. Thorndike v. Hesperian Orchards, Inc. (1959), 54 Wn. (2d) 570, 343 P. (2d) 183, and cases cited therein. From our examination of the record, we have concluded there is evidence to support the findings of the trial court.
[2] The remaining assignment of error questions the action of the trial court in entering judgment of dismissal with prejudice. However, the judgment was entered after a trial on the merits. All that the appellants had to offer in support of their claim was before the court, and the respondent was entitled to a judgment that would be red judicata and finally settle the controversy. Dismissal with prejudice was, therefore, proper. Caldwell v. Williams (1936), 187 Wash. 501, 60 P. (2d) 28.
The judgment should be affirmed. It is so ordered.
WEAVER, C. J., HILL, ROSELLINI, and FOSTER, JJ., concur.