Stroup v. Pepper

The opinion of the court was delivered by Smith, J. :

This case was decided in October last and the judgment of the court below reversed. ( 73 Pac. 896 .) A rehearing was allowed, and the question *245 submitted to counsel for argument was whether the decree in the foreclosure suit of Huston, Trustee, v. The Bow Creek Irrigation Company and others was resjudicata respecting the rights claimed by Huston in the ejectment action as a mortgagee in possession.

The mortgage for $950 on the land in controversy held by Huston was set up for the first time in the foreclosure suit in his reply to the answer of the Stroup heirs. Upon motion of the latter all allegations concerning it were stricken out. In the former opinion Mr. Justice Pollock, speaking for the court, said :

“True, all the allegations as to the prior mortgage were, upon motion, stricken from the reply, and the plaintiff was denied the right actually to litigate his rights under that mortgage; but the test of the effect of a former judgment or decree is not ‘what was actually litigated and determined’ but ‘what was putin issue, and might have been determined under the .issues.’ ”

The language quoted is too general when applied to the facts of the present case. This was an action in ejectment. The former was an equitable suit in foreclosure. The true rule, now well established, is that where a second action between the same parties is upon a different claim or demand the judgment in the prior action operates as an estoppel only as to those matters in issue upon the determination of which the finding was made or the judgment rendered, and does not extend to matters which might have been, but were not, litigated and determined in the former action. The leading case on the subject in this country is Cromwell v. County of Sac, 94 U. S. 351 , 24 L. Ed. 195 . An action was brought on four bonds issued by the county of Sac for $1000 each and four $100 coupons attached. The bonds matured in 1868, 1869, 1870, and 1871. As a defense the county *246 relied upon the estoppel of a judgment rendered in its favor in a former action brought against- it by one Samuel C. Smith on certain earlier maturing coupons on the same bonds, accompanied with proof that the plaintiff, Cromwell, was at the time the- owner of the coupons sued on in that action, and that the same was prosecuted for his sole use and benefit. In holding that the defense of former adjudication did not .avail, Mr. Justice Field said :

“In all cases, therefore, where it is sought to appty the estoppel of a j udgment rendered upon one cau.se -of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in -the original action ; not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive-in another action.”

The question is exhaustively treated in the opinion quoted from, and many authorities, both English and American, cited to sustain the principle stated. In Davis v. Brown, 94 U. S. 423, 428 , 24 L. Ed. 204 , Mr. Justice Field again said -:

“ When a judgment is offered in evidence in a subsequent action between the same parties upon a different demand, it operates as an estoppel only upon the matter actually at issue and determined in the original action ; and such matter, when not disclosed by the pleadings, must be shown by extrinsic evidence.”

The same doctrine was reaffirmed and applied in Nesbit v. Riverside Independent District, 144 U. S. 610 , 12 Sup. Ct. 746, 36 L. Ed. 562 , and in Dennison v. United States, 168 id. 241, 18 Sup. Ct. 57, 42 L. Ed. 453 . The case of Clark v. Blair, 14 Fed. 812, 814 , was a suit in equity to set aside and cancel certain tax deeds. It was insisted that a decree of a Nebraska district court *247 between the same parties was an adjudication. Mc-Crary, circuit judge, said :

“The former suit, however, was brought to obtain a different remedy and secure a different relief from that which is sought in the present case, although the relief sought in the two cases was predicated upon the same facts. The former suit was brought before the tax deed was executed, and for the purpose of enjoining its execution, while the present suit is instituted after the execution of the tax deed, for the purpose of having the same set aside as fraudulent and void. For the purposes of this question, we may say that the present is a suit based upon the same facts, or between the same parties or their privies, but to enforce a different demand and obtain another form of relief. It is, therefore, not a case in which the parties are conclusively bound by all that might have been litigated in the former suit. They are conclusively bound only by what was in fact litigated and decided. Cromwell v. County of Sac, 94 U. S. 351” [ 24 L. Ed. 195 ].

The following cases lay down the same doctrine : Rossman v. Tilleny, 80 Minn. 160 , 83 N. W. 42 , 81 Am. St. Rep. 247 ; State, ex rel., v. Cooley, 58 id. 514, 60 N. W. 338 ; Foye v. Patch, 132 Mass. 105 ; Montpelier S. B. & T. Co. v. School Dist. No. 5, 115 Wis. 622 , 92 N. W. 439 ; Pitts et al. v. Oliver, 13 S. Dak. 561, 83 N. W. 591 , 79 Am. St. Rep. 907 ; Wentworth v. Racine County, 99 Wis. 26 , 74 N. W. 551 ; Chicago, R. I. & P. Ry. Co. v. St. Joseph Union Depot Co., 92 Fed. (C. C.) 22; Lawrence v. Stearns, 79 id. (C. C.) 878. See, also, section 506 of the second edition of Black on Judgments. In Vanfleet on Collateral Attack, the author notes the confusion which has arisen in applying the doctrine of res judicata to cases of collateral attack. In section 17 he says :

“It is the opportunity to make defense which bars a *248 collateral attack on the original judgment, while it is the contest actually made and passed upon which gives the successful party the right to use the judgment as a bar to the same contest in a new action on a different subject-matter.”

Of our own cases that of Knickerbocker v. Ream, 42 Kan. 17 , 21 Pac. 795 , is nearest in point. The syllabus reads :

“Two notes were given at the same time for part payment of a header ; both were executed by the same makers to the same payee; an action -was brought upon one of the notes; upon trial a verdict was rendered for defendants for fifty dollars damages, which they remitted, and a judgment was rendered in their favor for costs. In a subsequent action between the same parties on the other note, the judgment in the former action is not a defense in the last action, when defendant’s answer fails to show that all the defenses that might have been tried in the former action were: decided in defendant’s favor.”

In the prior decision of this case the rights of Huston under his $950 mortgage were treated as having been involved in, and determined by, the decree foreclosing the $5000 mortgage executed to him by the Bow Creek Irrigation Company. As before stated, Huston was nqt only not permitted to litigate the question whether his $950 mortgage was a lien on the land in controversy, but he was shut out from pleading it, and wholly precluded from tendering an issue involving its force or validity as an encumbrance on the land. The $5000 mortgage which Huston owned was held not to be a lien on the property now in controversy. There was, therefore, in the equity suit not only no' adjudication of Pluston’s rights under the $950 mortgage, but there was no issue respecting it, and the land on which it was a lien was not mentioned or referred to in the decree. The rule stated in Davis v. *249 Brown, supra, to the effect that the estoppel in a second controversy on .a different cause of action operates “only upon the matter actually at issue and determined” in the first action deprives the judgment in the prior equity suit of any effect on the rights of Huston, the mortgagee, in the subsequent ejectment action.

It follows that the instruction given by the trial court that the judgment in«the foreclosure suit did not affect the right of Huston as a mortgagee in possession was correct.

The judgment of the court below will be affirmed.

All the Justices concurring.