Culhane v. Etting

153 N.W. 301, 35 S.D. 544, 1915 S.D. LEXIS 80

• Court: South Dakota Supreme Court
• Decided: June 19, 1915
• Docket: File No. 3723
• Status: Published

Opinion

McCOY, P. J.

[1] In this action plaintiff sought to recover from defendants a bill for threshing in the fall of 1910. The defendants admitted the performance of the threshing for them, and on the trial the amount of the value of such services was stipulated to be $132.18; and it was also* stipulated that said claim for said threshing was unpaid, unless the same was satisfied by a credit which was allowed to plaintiffs in a certain judgment rendered in the circuit court in, a prior action wherein these defendants, Btting and Mills, were plaintiffs, and these plaintiffs in this action, together with certain sureties on their threshers’ bond, were defendants. It was found by the trial court that the said bill for threshing was satisfied and paid by the judgment in the prior action, and it rendered judgment accordingly, and plaintiffs appeal, assigning the insufficiency of the evidence to justify the finding, and also errors alleged to have occurred in the reception and rejection of evidence, duly excepted to by plaintiffs.

The' sole and only question before this court, upon the merits, is whether, or not the said prior judgment set up in defendants’ answer is res judicata in this case. The complaint in the prioj- case, in so far as the .allegations thereof are material in this case, in substance was as follows: That defendants, Culhane and Kinney, were the owners of a steam threshing machine, and, about the month of September, 1910, did carelessly and negligently cause to 'be set by said threshing machine a fire, thereby destroying barley and straw of said plaintiffs, to plaintiffs’ damage in the sum of $718.50; that no part of said, damages has 'been paid, but defendants are entitled to a credit for the sum of $132.18 for the threshing done for plaintiffs in the fall of 1910, which amount may be deducted from, the amount of damages, sustained by plaintiffs, wherefore plaintiffs demand judgment against defendants for the sum of $586.32, together with interest and costs. Defendants in the prior action appeared and made answer denying the allegations of the complaint. Thereafter the appellants, as defendants in the prior action, offered to allow plaintiffs in that action to take judgment for the sum of $184.50, together with interest and costs, which offer of judgment was accepted. We are of the view that the finding of the trial court was right. If the respondents were of the view that appellants, as plaintiffs in the former action, could not prove their loss by fire to exceed1 $316.78, then respondents, as such defendants, had the right to offer to allow judgment to. be taken against them for the amount of $184.50.

[2] On;-the trial respondents offered in evidence the judgment roll in the prior action, to which offer appellants objected as incompetent, irrelevant, and immaterial, it not appearing in the judgment record that the allegation in regard to the thresh bill was a material allegation of the complaint, or that it was in any manner considered by the court in arriving at its determination in that action. We are of the view that the objection was properly overruled. While the allegation as to the thresh bill was not a necessary allegation in the complaint in the prior action, it was nevertheless material and therein alleged, and was one of the material matters upon which respondents had the right to base, and take into consideration in making, their offer of judgment. Abbott v. Stevens, 117 Mass. 340; Briggs v. Richmand, 10 Pick. (Mass.) 391, 20 Am. Dec. 526.

[3] We are also of the view that the matters appearing in the judgment roll upon which the judgment was based cannot Ik varied by parcl evidence.

The judgment and crder appealed from are affirmed.