Farmers State Bank v. Germer

437 N.W.2d 463, 231 Neb. 572, 1989 Neb. LEXIS 118
CourtNebraska Supreme Court
DecidedMarch 24, 1989
Docket87-628
StatusPublished
Cited by18 cases

This text of 437 N.W.2d 463 (Farmers State Bank v. Germer) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farmers State Bank v. Germer, 437 N.W.2d 463, 231 Neb. 572, 1989 Neb. LEXIS 118 (Neb. 1989).

Opinions

Boslaugh, J.

This is an appeal in an action in ejectment brought by the plaintiff, Farmers State Bank, against the defendants, Gerald L. and Eldora E. Germen At the close of the evidence, the trial court sustained the plaintiff’s motion for a directed verdict and rendered judgment for the plaintiff. The defendants have appealed.

The case arises out of a financing transaction which the defendants entered into on December 19,1984. The defendants operated a farm in Jefferson County, Nebraska, for a number of years and financed their operations through the plaintiff bank. On December 19, 1984, the defendants executed a promissory note in the amount of $282,642.85, payable to the plaintiff, which was secured by a security agreement on their farm equipment and a deed of trust on a quarter section of farmland. The note by its terms was due and payable on December 31, 1985. When the defendants failed to pay the note, the plaintiff demanded return of the equipment pledged under the security agreement and commenced a replevin action on August 7, 1986. On January 15, 1987, the trial court sustained the plaintiff’s motion for summary judgment in the replevin action and awarded possession of the property to the plaintiff. Thereafter, the defendants appealed to this court, but the appeal was dismissed on June 2, 1987, pursuant to the stipulation of the parties filed in this court on May 27,1987.

Pursuant to the terms of the deed of trust, the land described therein was sold by the trustee to the plaintiff on April 22,1986, and a deed delivered to the plaintiff. This action was commenced September 8, 1986, to recover possession of the property.

In their second amended answer and counterclaim, the defendants alleged that the deed of trust which they executed on December 19, 1984, was void because it had been obtained by the plaintiff through false representations made by the president of the plaintiff concerning the necessity for a real estate mortgage executed by the defendants on January 3,1984; [575]*575through a false promise that the plaintiff would continue to extend a line of credit to the defendants; and through duress, by threatening to foreclose the January 3, 1984, mortgage and a security agreement if the defendants refused to execute the promissory note, deed of trust, and security agreement which they signed on December 19,1984.

The defendants’ first assignment of error is that the trial court erred in granting a partial summary judgment and finding that their defenses were barred under the doctrines of res judicata and collateral estoppel by reason of the judgment in the replevin action.

In the answer and counterclaim which the defendants filed in the replevin case, they alleged the same facts concerning fraud and economic duress as in their second amended answer and counterclaim in this case. In the replevin action, the plaintiff filed a plea in abatement which alleged that before the replevin suit had been commenced, the defendants had filed a complaint in the U.S. Bankruptcy Court as an adversary proceeding against the plaintiff in which the defendants sought the same relief on the same facts, and alleged that the proceeding was then pending in the bankruptcy court. The trial court sustained the plea in abatement and dismissed the defendants’ counterclaim without prej udice on December 31,1986.

Generally, the pendency of a former action for the same cause between the same parties and in the same court constitutes a good plea in abatement. Miller v. Miller, 213 Neb. 219, 328 N.W.2d 210 (1982). As a general rule, where a judgment in a prior suit would be a bar to a judgment in the second suit brought in the same or another court of concurrent jurisdiction, the plea in abatement should be sustained. National Bank of Commerce T. & S. Assn. v. Shull, 195 Neb. 590, 239 N.W.2d 505 (1976). Where two remedies exist, and the one in whose favor they exist elects to proceed for the enforcement of one and institutes a proceeding therefor, he cannot avail himself of the other while such proceeding is pending. State, ex rel. Olson, v. Claney, 97 Neb. 721, 151 N.W. 155 (1915). The main purpose of abating a civil action is to prevent unnecessary or vexatious litigation. Cahoon v. First Nat. Bank, 112 Neb. 462, 199 N.W. 830 (1924). The theory of [576]*576our civil procedure is to avoid a multiplicity of suits. State, ex rel. Olson, v. Claney, supra.

In both their original answer and counterclaim, filed November 18, 1986, and their amended answer, filed February 4,1987, the defendants sought damages on the basis of the same allegations of fraud and duress made in their answer and counterclaim filed in the replevin action on November 10,1986, for which they sought damages. On December 31, 1986, the trial court sustained the plaintiff’s plea in abatement to the counterclaim filed November 18, 1986, upon the same grounds as the order in the replevin case made the same day.

On April 7, 1987, the trial court sustained a part of the plaintiff’s motion to strike by striking the allegations relating to fraud and duress made in the amended answer filed February 4, 1987, and striking that part of the prayer seeking damages for the alleged fraud and duress.

On June 22, 1987, the trial court entered a partial summary judgment finding that the defendants’ attempt to plead fraud and economic duress was barred by the judgment in the replevin case under the doctrines of res judicata and collateral estoppel.

A final judgment on the merits in a court of competent jurisdiction is conclusive upon the parties in any litigation involving the same cause of action. Carroll v. Moore, 228 Neb. 561, 423 N.W.2d 757 (1988).

A question of fact once litigated on its merits is settled as to the litigants and may not be relitigated directly or collaterally by the litigants or their privies. Davis Management, Inc. v. Sanitary & Improvement Dist. No. 276, 204 Neb. 316, 282 N.W.2d 576 (1979).

The conclusiveness of a judicial determination is not affected by the kind of proceeding or form of action in which it was made or by a difference in form or object of the litigation in which the adjudication was made and that in which res judicata is pleaded. Kuhlman v. Cargile, 206 Neb. 302, 292 N.W.2d 574 (1980).

Where a judgment on the merits is rendered in favor of one party in an action to enforce one of two or more alternative remedies, the other party cannot thereafter maintain an action to enforce another of the remedies. Kuhlman v. Cargile, supra.

[577]*577Any right, fact, or matter in issue and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies, whether the claim or demand, purpose, or subject matter of the two suits is the same or not. Kuhlman v. Cargile, supra.

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Farmers State Bank v. Germer
437 N.W.2d 463 (Nebraska Supreme Court, 1989)

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Bluebook (online)
437 N.W.2d 463, 231 Neb. 572, 1989 Neb. LEXIS 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-state-bank-v-germer-neb-1989.