Whiting v. Burger
Irving O. Whiting and another v. Henry S. Burger and others, and trustees
Headnotes
Summary
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
Opinion of the Court
Text extracted by OCR from a scanned original; check the original for exact wording.
Libbey, J.
This case was tried by the judge presiding below without the intervention of a jury, who rendered judgment for-the defendants.
The most important question involved in the case is, whether-the former judgment pleaded and put in evidence by the defendants is a bar to the further maintenance of the action. With the fact found by the judge we think it is. The plaintiffs were residents of Massachusetts, and the defendants were residents of' New York. This action was commenced September 12, 1884, by attachment of the defendants’ property in this state. January 9, 1885, the plaintiffs commenced another action against the defendants for the same causes of action, in the Supreme Court for the city and county of New York, in which the defendants, having been duly summoned, appeared, and judgment was rendered by said court on default, February 4, 1885, for the amount claimed in the complaint.
It is claimed by the learned counsel for the plaintiffs that the-judgment in New York has no effect here except to preclude the defendants from the right to controvert the validity of the claims, in suit — -that it can not be set up by the defendants as a bar to-the maintenance of this action. The court in New York had jurisdiction of the parties and of the subject. The judgment there is a bar to another suit in the courts of that state for the - same causes of action. Upon this point the law of that state is> the same as in this state. A judgment in assumpsit merges the- 1 promise declared on, and no further action can be maintained on it. Peters v. Sanford, 1 Den. 224 ; Nicholl v. Mason, 21 Wend. 339 .
We think the rule well settled that a judgment which is. conclusive between the parties, and a bar to another action for-the same cause in the state where rendered, is, by the constitution of the United States, Art. 4, § 1, and the act of Congress of *294 May 26, 1790, equally conclusive in every other state in the Union. This is the declared doctrine of this court. North Bank v. Brown, 50 Maine, 214; Sweet v. Brackley, 53 Maine, 346. The same doctrine is held by the Supreme Court of the United States. Insurance Co. v. Harris, 97 U. S. 331 . That case appears to be directly in point. It was an action commenced in the circuit court of the United States for the District of Maryland, on two life policies. While it was pending in that court, a judgment was rendered in the Supreme Court for the city and county of New York against the defendant company, upon the same policies, in an action in which the plaintiff and defendant were parties, and the question involved was whether the New York judgment was a bar to the further maintenance of the action in the federal court. In the opinion the court say : "The decree made by the Supreme Court of New York, if admissible, was certainly material. It will not be denied that its effect was the creation of a complete bar against the recovery of any other judgment, in that state, on these policies of insurance, against the plaintiffs in error. The claim of Bruñe or Whitridge became merged in the judgment of that court. It is perfectly immaterial whether the New York court first obtained jurisdiction of the subject and the parties, as in fact it did. When the final judgment was rendered it closed the controversy, and after that the person assured by the policies could not have maintained a suit on them, in that state, in the same or any other court; and if not, he can not now in any other state of the Union. This is settled by the act of Congress of May 26, 1790, which declares that the records and judicial proceedings of the ■courts of any state, when authenticated, shall have such faith and credit given them in every court within the United States, .as they have by law or usage in the courts of the state from' whence they are taken. The meaning of this is, that when a Judgment or decree has been given in one state by a court having jurisdiction of the parties and the subject, it has the same force and effect when pleaded or offered in evidence in the courts of .any other state.” Citing Mills v. Duryee, 7 Cranch, 481 ; Mayhew v. Thatcher, 6 Wheat. 129 ; Habich v. Folger, 20 *295 Wall, 1; Bumby v. Stephenson, 24 Ohio, 474; and Dobson v. Pearce, 12 N. Y. 156 .
This is a federal question, and if wo could have any doubt about it, we are bound to follow the law as decided by the federal court of last resort.
But it is claimed that the former judgment was not properly before the court because not properly pleaded. The defendants first pleaded it in bar of the further maintenance of this action ; and afterwards, by special leave of court, pleaded with it the general issue. Plaintiffs demurred specially to the plea in bar, and joined the general issue. It is claimed by the counsel for the plaintiffs that the special plea should be held bad on the demurrer, because it does not contain the technical requirements of a plea puis darrein continuance. The answer is, it is not such a plea. It is a special plea filed before issue joined, and one that may be filed at any time before issue joined without special leave of court. Rowell v. Hayden, 40 Maine, 582. It is urged further that the plea is bad because it appears by the authenticated copy of the judgment, which is referred to in the plea and filed with it, that the first two items of the claims declared on in the two actions are not the same. The plea avers that they are identical and the same, and the plea is not bad on this ground unless they are necessarily different. We think they are not.
But the sufficiency of the special plea is not material to the result. We think it well settled that the former judgment, duly authenticated, was admissible in evidence under the general issue, and would have the effect, with the fact found by the judge, to bar the further maintenance of the action. Insurance Co. v. Harris, supra, p. 336 , and cases there cited; Emery v. Fowler, 39 Maine, 326.
It is claimed, however, that the court had no power to allow the general issue to be filed, after the filing of the special plea, and before issue was tendered upon it. We have no doubt that the court had such power, to be exercised in its discretion, and exception does not lie to the exercise of such discretion.
The remaining question is whether the court erred in admitting *296 evidence to prove the identity of the first two items of the claims declared on in the two actions. This action is an account annexed, and the first two items are described as follows :
“1884, June 30. Commis. on their sales in Boston, June, ’84, . $103.14.”
“ July 31. “ “ “ “ July, ’84, $56.33.”
In the complaint on which the New York judgment was rendered as " goods and merchandise,” sold and delivered to the defendants, "$103.14, June 30th, 1884,” "$56.33, on July 31st, 1884.”
When the record does not disclose the precise issues raised and claims considered and which pass into judgment in the action, they may be shown by parol evidence. Rogers v. Libbey, 35 Maine, 200; Emery v. Fowler, 39 Maine, 326; Campbell v. Rankin, 99 U. S. 261 ; Cromwell v. County of Sac. 94 U. S. 351 .
But it is claimed an item for goods and merchandise sold can not be the same as an item for commissions on sales of merchandise. May not the claims in substance be the same, but in- the one case or the other, through mistake or clerical error, be misdescribed ? The dates are the same and the amounts are the same. If the claims were in fact the same, which is not controverted, the misdescription was amendable, and where a claim in suit is in part misdescribed, and goes into judgment without objection, we think parol evidence to explain and identify it, is not a contradiction of the record, but is within the rule as held in the authorities cited. The court below found that the items in the two actions were identical. This finding of fact is conclusive. We think the bar perfect.
Exceptions overruled.
Peters, C. J., Walton, Yirgin, Foster and Haskell, JJ., concurred.
How later courts describe this case
No later court has written an explanatory parenthetical about this case yet.
Cited by 3 cases
View all citing references →Relies on it most ⓘ
Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.