Kleinschmidt v. Binzel

35 P. 460, 14 Mont. 31, 1894 Mont. LEXIS 11

Opinion

Harwood, J.

Defendant having alleged in his cross-complaint those contracts and transactions concerning the land in controversy, shown in the above statement of the case, demanding affirmative relief, plaintiff set up in bar thereof the complaint of defendant in an action which he commenced in 1883; wherein he alleged substantially the same facts, and demanded substantially the same relief, as in'his cross-complaint in the present action. To which complaint in the defendant’s action in 1883 demurrer was interposed and sustained, and no further action was taken therein. And the plaintiff here, who was one of the defendants in the action of 1883, avers that he has succeeded to the rights of all the other defendants in that action. Wherefore, he insists, that, by said proceedings in the former action, the right, title, and equity claimed by Binzel, defendant here, in and to the property in controversy, has “been adjudicated and determined, by reason whereof he is estopped from asserting his pretended claim to said property.” In this position plaintiff was sustained by the ruling of the trial court.

Appellant has made some attempt to point out differences or distinctions between the complaint of Binzel in the action of 1883 and his cross-complaint in the present action. But a careful comparison of these pleadings we think discloses a substantial similarity in the facts alleged and relief sought; with this exception, that the complaint of 1883 went further than the cross-complaint in this action, and contained allegations in reference to an alleged copartnership compact engaged in between Binzel and certain of those defendants, and a violation thereof, and other grievances, for which he demanded a large amount of damages. As to those matters the cross-complaint in the present action is silent. But in so far as it goes in alleging the contracts and facts, on which Binzel claims rights of ownership and possession in and to the tract of land in controversy, the cross-complaint to this action is substantially the same as his complaint of 1883 on that branch of the case.

The authorities support the proposition urged by respondent that if the alleged cause of action is submitted on the merits by demurrer, admitting the facts alleged, but placing over against them in the judicial scale, the proposition of law that the facts pleaded and thus admitted are insufficient to warrant judgment in favor of the pleader; and upon due weighing of the law and the facts, those facts are adjudged insufficient by sustaining the demurrer, and this ruling is allowed to stand; those facts thereby pass under the rule of things adjudicated; and the party against whom such adjudication proceeds, as well as his privies and representatives, are thereby barred from again asserting the same facts in another action pertaining to the subject as effectually as though such facts were found from the proof or admitted ore terms in the course of the trial. Such appears to be the rule dedueible from the authorities, without much conflict. (Gould v. Evansville etc. R. R. Co., 91 U. S. 526; Bissell v. Spring Valley, 124 U. S. 225; Griffin v. Seymour, 15 Iowa, 30; 85 Am. Dec. 396; Robinson v. Howard, 5 Cal. 429; Bouchaud v. Dias, 3 Denio, 238; People v. Stephen, 51 How. Pr. 235.)

But this rule should always be stated and applied with due regard to some modifying conditions, which it is not permitted to violate. Thus,'when the pleader has submitted to the ruling of the court on demurrer, against the sufficiency of the,. cause of action or defense, as stated, that ruling would not bar him or those in privity with him from again asserting the same facts, accompanied by additional allegations which complete the statement of a good cause of action or defense. (Gould v. Evansville etc. R. R. Co., 91 U. S. 526.) Nor where an action is commenced to effectuate a certain purpose—such as specific performance or to obtain injunction—and demurrer is inter-fused and sustained on the ground that the complaint does not show facts sufficient for such action—that is, to invoke such relief—such ruling would be no bar to an action for the proper remedy. It being pointed out in the consideration of such demurrer that, although the plaintiff, for instance, alleges an agreement for the sale and purchase of a piece of real property, and payment of part, or even all, of the purchase price, and the breach of such agreement by the vendor; still, if no other equities were shown, the court would hold that the complaint, while good for damages, is indeed insufficient to support a decree for specific performance (Boulder Valley etc. Co. v. Farnham, 12 Mont. 1), and would therefore sustain the demurrer. It may be said that this would be on the ground of want of jurisdiction. But that arises because of insufficient showing of facts to support the relief asked. The pleader would have mistaken his remedy, and, under a system where courts of law and equity were separate, the demurrer in such cases would prevail, and the party be remitted to the proper court and action for redress. And under our united jurisprudence, where equitable and legal remedies are administered in the same court, and frequently in the same action, the demurrer in such a case, as instanced, would undoubtedly prevail, because the relief asked could not be granted on the facts stated; and although the court might have jurisdiction under our united system to grant other relief, it would probably not be forced upon the plaintiff until he had shaped his action to that end. But when he came into court with his suit for damages, it would be found that he pleaded the same transaction and breach whereby he would allege he was damaged in a certain sum, for which he would ask judgment. Likewise, if the action was commenced prematurely, as appeared on the face of the complaint, it would be held insufficient on demurrer for that cause. (Shelden v. Edwards, 35 N. Y. 286.) If it were held, in such cases, that the order sustaining the demurrer devitalized the facts first pleaded, it would prevent setting up those facts in another action, at the proper time, or in the proper form, and for available relief. So it is said by eminent authority in considering these conditions: “If the first suit was dismissed for defect of the pleadings, or parties, or a misconception of the form of proceedings, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment will prove no bar to another suit.” (Hughes v. United States, 4 Wall. 232.)

It is - clear, however, that defendant’s cross-complaint falls within the rule, and not the exception. He has in the case at bar reasserted- substantially the same facts as in complaint of 1883, with no additional matter; and he asks substantially the same character of relief. Demurrer was sustained to his complaint, and that ruling stands in force. Therefore, if we had no further point for consideration, we should, without hesitation, affirm the ruling of the trial court, that the matter pleaded in the cross-complaint is res adjudieata, and therefore barred. But before proceeding to that conclusion, it must be inquired whether it is shown that the demurrer to Binzel’s complaint of 1883 was sustained on consideration of the merits; for the authorities harmoniously concur in the proposition that it must clearly appear from the record in the former case, or be proved by competent extraneous evidence, that the matter as to which the rule of res adjudícala, is invoked as a bar was in fact adjudicated in the former action.

Upon this point it is said by Mr. Justice Nelson, in Packet Co. v. Sickles, 5 Wall. 592.

“As we understand the rule in respect to the conclusiveness of the verdict and judgment in a former trial between the same parties, when the judgment is used in pleading as a technical estoppel, or is relied on by way of evidence as conclusive, per sc, it must appear, by the record of the prior suit, that the particular controversy sought to be concluded was necessarily tried and determined—that is, if the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties; and further, in cases where the record itself does not show that the matter was necessarily and directly found by the jury, evidence aliunde consistent with the record may be received to prove the fact; but, even where it appears from the extrinsic evidence that the matter was properly within the issue conlroverted in the former suit, if it be not shown that the verdict and judgment necessarily involved its consideration and determination, it will not be concluded.”

And again, in the case of Russell v. Place, 94 U. S. 608, Mr. Justice Field, in expressing the opinion of the court, observes:

“It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in .another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record—as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered, the whole subject matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point" involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible.

“Thus, in the case of the Washington etc. Steam Packet Co. v. Sickles, 24 How. 333, a verdict and judgment for the plaintiff in a prior action against the same defendant on a declaration, containing a special count on a contract, and the common counts, was held by this court not to be conclusive of the existence and validity of the contract set forth in the special count, because ’the verdict might have been rendered without reference to that count, and only upon the common counts. Extrinsic evidence showing the fact to have been otherwise was necessary to render the judgment an estoppel upon those points.

“When the same case was before this court the second time (Packet Co. v. Sickles, 5 Wall. 580), the general rule with respect to the conclusiveness of a verdict and judgment in a former suit between the same parties, when the judgment is used in pleading as an estoppel, or is relied upon as evidence, was stated to be substantially this: That, to render the judgment conclusive, it must appear by the record of the prior suit that the particular matter sought to be concluded was necessarily tried ®r determined—that is, that the verdict in the suit could not have been rendered without deciding that matter, or it must be shown by extrinsic evidence, consistent with the. record, that the verdict and judgment necessarily involved the consideration and determination of the matter.”'

Announcements to the same effect could be drawn from many other cases of undoubted authority. (See Hughes v. United States, 4 Wall. 232; Lore v. Truman, 10 Ohio St. 53 Estep v. Larsh, 21 Ind. 196; Keller v. Stolzenbach, 20 Fed. Rep. 47; Woodland v. Newhall, 31 Fed. Rep. 434; Dygert v. Dygert, 4 Ind. App. 276.)

Now it appears that the demurrer in the former action specified eight objections to the complaint, but the same may be properly consolidated into three statutory grounds of demurrer, namely: 1. Want of sufficient facts alleged to constitute a cause of action; 2. Misjoinder of causes of action; 3. Misjoinder of parties defendant. The other nominal objections are merely specifications of particulars in which the complaint is wanting or defective on some of those grounds. The record does not disclose the particular ground upon which the court sustained the demurrer. As to that ruling it is recorded that the demurrer was sustained by the court. But respondent’s counsel insists that from the general order sustaining the demurrer, the presumption follows, that it was sustained on all the grounds alleged against the complaint in the demurrer. ■ This view, although urged by an admirable argument contained in respondent’s brief, and sought to be supported by citations of authority, we think cannot be maintained, because it is contrary to reason, and the rule of law upon this subject, sustained by the great weight of authority. The case of People v. Stevens, 51 How. Pr. 235, among others cited by respondent in support of the presumption which he contends for, appears to be the nearest in point. It is a New York decision, not of the last resort, but of the supreme court, general term. The demurrer under consideration in that case went to three grounds: Defect of parties; improper joinder of causes; and want of sufficient facts alleged to constitute a cause of action. The demurrer was sustained by a general order, not showing whether upon one or more of the alleged grounds of objection to the complaint. When this judgment was pleaded in bar of setting up the same facts in another action, it was insisted that the demurrer in the former action was sustained upon all the grounds of the objection stated therein. In considering that proposition the court said:

“It was according to the order and judgment, ‘the demurrer,’ which came on for argument at the special term, and it was ‘upon the demurrer’ that the judgment in favor of defendant was given. It was sustained, not in part, but as a whole, and that could only be done by reaching a conclusion unfavorable to the plaintiffs upon every issue which it presented.”

With due deference, we are unable to adopt or follow that holding. It seems to us, a moment’s reflection suffices to show that the conclusion there stated contradicts the real state of the law, as well as the constant practice of the courts. It is well known that if either ground of the demurrer is sustained, that is sufficient to support the order sustaining the demurrer. How, then, could it be affirmed that the demurrer could only be sustained “ by reaching a conclusión unfavorable to the plaintiffs upon every issue which it presented.” That untenable conclusion is reached by arbitrarily declaring that the demurrer was sustained as a whole, when the same order could have been made on finding only one objection well founded. It would seem as proper to presume from the fact that several shots were fired by one person at another, either of which taking effect in a vital spot would produce death, and death ensued, that every shot hit the mark with fatal effect, and so hold without any further showing.

There is a presumption following a judgment that those things were adjudicated, without which the judgment could not have been rendered. This proposition is frequently asserted in the authorities, and is well founded, because it is an inherent implication that those things were considered and determined, without which the ultimate conclusion would not have been announced. This implication shows that the court, in sustaining the demurrer, held some one of the grounds fatal to the complaint, stated in the demurrer, well founded; for without such finding the ultimate conclusion that the demurrer be sustained would not have been announced by the court. But this is not sufficient to maintain respondent’s position. To support that position the presumption must go farther, and cover the broad proposition that by a ruling sustaining a demurrer which attacks the complaint by several fatal objections it must be presumed that the court adjudicated and held good all the grounds which the demurrer set forth. This proves too much, and thereby weakens the proposition so that it falls of its own untenable weight. Because from that presumption it follows that where the complaint is demurred to on several grounds, such as misjoinder of causes, and also misjoinder of parties, and want of sufficient facts to constitute a cause of action, as in the case of the demurrer to Binzel’s complaint of 1883, if the court adjudicated and determined every ground unfavorable to the plaintiff, it proves that the court, while holding that the case was not in court in proper form of action, but contained a misjoinder of causes which could not be lawfully adjudicated together, and also a misjoinder of parties defendant contrary to the provisions of law, nevertheless, being aware that the case was not properly before it, the court determined to hold the case fast in its grasp, and pass upon the merits. Such is the inevitable effect of presuming, from the order merely sustaining such a demurrer, that the court passed upon and sustained all the grounds the demurrer alleged. The impropriety of such action seems plain, and we therefore think the current of presumption is the other way, as directly held by the supreme court of Iowa, in Griffin v. Seymour, 15 Iowa, 30, 83 Am. Dec. 396, where it was held that in such a case it would be presumed that the court, having found some formal defect, by reason of which the case was not properly in court, would not then proceed to consider and pass upon the merits. This is also in accord with the reasoning and conclusion of a great number of cases (some of which have been cited supra), that it must be clearly shown that the very matter as to which the bar of res adjudicóla is invoked was adjudicated and determined on the merits in the former action. That it is not enough that such matter was attempted to be drawn in question if the same decision could have been rendered without its adjudication; that is, if its adjudication is not inherently implied in the judgment, it will not be held barred unless the record is supplemented by extraneous proof to the effect that such matter was adjudicated. The very rule that such evidence may be introduced in its tendency contradicts the idea that the uncertainty will be covered by presumption.

The application of the presumption contended for by respondent would, we think, frequently contradict or suppress the real fact with unjust consequences. Suppose a complaint is filed which is subject to the objection of misjoinder, or defect of parties, or improper joinder of causes of action. And, a demurrer having stated these grounds, also alleges the untenable ground of insufficient facts to constitute a cause of action. Now, the court, in considering the demurrer, would find one of the first mentioned objections well founded. But as to the latter objection the court would either hot consider it at all, because the case was not properly in court, or if the court did consider that objection, it would be found untenable. But for the other defects the demurrer would be sustained. Thereupon an order would be entered to the effect that the demurrer is sustained. The defect fully supports that order, and we venture that in a great majority of cases in our practice, where the demurrer is used with great frequency, no more specific order would be entered. In such a case, if the plaintiff and his counsel who attended the argument concluded the court was right in its ruling on the demurrer, because there was a misjoinder, or defect, of parties, or an improper union of causes, they would not appeal, for the appeal would be unavailing. Now, if the presumption for which respondent contends be established, the plaintiff in such a case would be barred from setting up those facts in another action against the same parties, or some of them, or their privies, free from the former defects, while as a matter of fact the former ruling did not touch the merits. It is said that in such a case it is the plaintiff’s duty to see that the entry in the record specifies the ground on which the former ruling was made, or that it was made without prejudice to another action, and a case is cited in support of that view. (Foote v. Gibbs, 1 Gray, 412.) It may well be answered that, the time has come when it is not considered altogether amiss to claim some duties as due from the court toward litigants; and one should be to so shape the entry of court rulings in its record as not to raise unjust and untrue implications against the suitor, of which he is not the author, to burden or defeat his effort to obtain justice. Of course no such thing would be done knowingly, but it would arise in many cases where demurrers are sustained by general order, if the presumption contended for prevailed. And in the multitude of rulings which the trial judge is called upon to make he does not always expound the grounds thereof, nor, if expounded, would they be noted in the record. In the case last above cited it was held that where a cause was dismissed, and the entry of the order showed no qualification, as that it was dismissed “without prejudice,” it would be presumed to have been dismissed on the merits. This ruling, however, would hardly apply under our code. (Comp. Stats., § 242.) Moreover, iu a later case (Foster v. “The Richard Busteed,” 100 Mass. 412, 1 Am. Rep. 125), the supreme court of Massachusetts cites, but does not follow, Foote v. Gibbs, 1 Gray, 412, as correctly announcing the rule of procedure applicable to the conditions mentioned; and likewise did Judge Brewer in Smith v. Auld, 31 Kan. 262. (See, also, to the same effect, the case of Steam Gauge & Lantern Co. v. Meyrose, 27 Fed. Rep. 213.) It is further insisted that section 243 of Code of Civil Procedure makes it obligatory to render judgment on the merits in all other cases than those stated in the five subdivisions of the preceding section. The context, the whole chapter of which that section is a part, shows that section 243 relates to the ease at a stage beyond the formation of the pleadings, where it stands for consideration and judgment on the merits, unless it is dismissed or nonsuited. The interpretation and application of that section, according to respondent’s contention, would make a judgment or order on demurrer conclude the merits, even if the demurrer stated no ground which went to the merits, because such a case would be “other than those mentioned in section 242.” We think it clear that the provisions of section 243 do not apply to this consideration.

It follows that the order sustaining the demurrer to Binzel’s complaint of 1838 might have been based upon defects not touching the merits, and it not having been shown that such judgment proceeded upon a consideration of the merits, the ruling of the trial court holding that the facts set up in the cross-complaint were adjudicated in the proceedings of 1883 cannot be sustained. The judgment in this action is therefore reversed, and the cause remanded to be proceeded with in conformity to the views herein expressed.

Reversed.

Pemberton, C. J. and De Witt, J., concur.