Knapp v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Co.

173 N.W. 945, 43 N.D. 291, 1919 N.D. LEXIS 12

Opinions

Robinson, J.

On October 17, 1916, this action was commenced in Ward county to recover from defendant $960 for the loss of 1,000 bushels of wheat in August, 1910. Aside from a general denial, the answer avers that the cause of action did not accrue within six years, and that in a former action, in the district court of Burke county, between the same parties for the same identical cause of action, after trial on the merits, it was by the court duly adjudged that the action be dismissed on its merits. In this case the court sustained the plea of a former adjudication and dismissed the action. The case was before this court, as shown by the reports, 34 N. D. 466-497, 159 N. W. 81. The first action was to recover from defendant for the loss of 1,000 bushels of wheat at 94 cents a bushel,, with interest from November 1, 1910. It is manifest that each action was brought for the same identical cause, by the same plaintiff against the same defendant, to recover for the loss of the same wheat'. In each case the parties and the cause of action are identical. In such a ease a party may not evade the force and effect of a former adjudication by varying the form of the complaint or by bringing actions in different counties.

It also appears that this action was not brought within six years from the date the cause of action accrued.

■ Judgment affirmed.

Bronson, J. I concur in the result.