Where separate actions in replevin are brought by the same person against the attaching officer to recover different portions of stock, and the officer defends in his official right, without joinder of the attaching creditors, a final judgment against the plaintiff on the merits, in the action first tried, is a bar to his prosecution of the others.38 § 1416. Theory of action Where a judgment creditor sues a stockholder to establish his liability, he cannot thereafter amend his petition by alleging the dissolution of the corporation, and base his right to recover on the notes which had been merged in the original judgment.39 Where a school district took land and erected a school building, after which the condemnation proceedings were held invalid and the owner recovered the land in ejectment, the judgment therein was not res judicata in a subsequent condemnation proceeding.40 Where an appeal had been taken from the decision of the board of county commissioners allowing a claim for which a warrant had been issued, and the assignee of the warrant, with knowledge of the appeal, failed to assert his rights in the district court, and judgment was rendered declaring the original claim void, the assignee could not later recover on a quantum meruit.*1 § 1417. Form of remedy If the same evidence will sustain both the present and the former action pleaded in bar, it is immaterial that the form of the two actions is not the same.* 42 Where a sheriff wrongfully attaches the goods of a stranger to the writ, who replevies them from the sheriff, claiming damages for their detention, and recovers the goods and costs, but no damages, and the sheriff satisfies the judgment, it is a bar to an action against the sheriff and his sureties for damages caused by the seizure and detention of the goods.13 38 McDowell v. Gibson, 50 P. 870, 58 Kan. 607. 39 Remington Paper Co. v. Hudson, 67 P. 636, 64 Kan. 43. 40 Aldridge v. Board of Education of City of Stillwater, 82 P. 827, 15 Okl. 354. 41 Crawford v. Board of Com'rs of Noble County, 58 P. 616, 8 Okl. 450. 42 Pratt v. Ratliff, 61 P. 523, 10 Okl. 168. 43 Ellis v. Crowl, 26 P. 454, 46 Kan. 100. § 1418. Grounds of action A person who is defeated in an action by reason of his failing to produce evidence which it is within his power to produce is estopped by the judgment from maintaining a second suit upon the same cause of action.44 An employé's action on a contract entitling him to half wages during disability is not barred by a judgment in his favor for damages for the same injury.45 A judgment denying relief, where nothing was involved except the right to an injunction, will not bar a subsequent action by plaintiff for damages.40 § 1419. Relief A final judgment determines the facts only as they appear in the pleadings.* 47 An action is barred by the judgment in a prior action, where the relief sought was possible and inherent in the cause of action set up in the prior action, though not sought therein.48 A judgment is not an estoppel as to facts which did not occur 44 A person holding title under a sheriff's deed made to him upon a transfer of the interest of the purchaser at the sheriff's sale, who fails to produce evidence of such transfer, though within his power to do so, and who because of such failure is defeated in an action of ejectment brought against a person in possession of the land, is estopped by the judgment from suing the same person upon a new deed based upon the same sheriff's sale and order of confirmation. Austin v. Ballard, 114 P. 1084, 84 Kan. 619. 45 McAdow v. Kansas City Western Ry. Co., 151 P. 1113, 96 Kan. 423, 646, L. R. A. 1917B, 1158. 46 Meyn v. Kansas City, 136 P. 898, 91 Kan. 29. 47 Marks v. Stevens (Okl.) 179 P. 7. Where plaintiff in ejectment relied on deeds as absolute conveyances, and defendant alleged that deeds were in fact mortgages securing an indebtedness, a judgment sustaining the defense without adjudication as to indebtedness or right of foreclosure did not bar another action between same parties for recovery of mortgage debt and for foreclosure. Traylor v. Rogers, 104 Kan. 250, 178 P. 416. 48 An action for damages for breach of contract to sell land held barred by judgment for defendants in a prior action for specific performance of such contract, though the question of damages was not litigated in the prior suit. Naugle v. Naugle, 132 P. 164, 89 Kan. 622. Where certain facts are pleaded in an action, and a final judgment rendered therein, necessarily deciding the merits thereof, the same facts cannot again be the basis of an action between the same parties arising out of the same transaction, though in the former action the facts were pleaded as a defense until after judgment was rendered, though reference was made in the pleadings in that action to matters not involved therein.*9 Where the only issue litigated in a former action was whether plaintiff was entitled to equitable relief, and the question of damages was not involved and the evidence in the first action did not tend to sustain the issues in the second action, the former judgment could not be pleaded as a defense to the second action.50 In an action upon an account and notes given for such account, a only, and no claim made thereon for affirmative relief. Bierer v. Fretz, 14 P. 558, 37 Kan. 27. A. commenced an action against B. and C., in which he claimed to be the owner and entitled to the possession of an undivided half of certain real estate; that B. was the owner of the other half; that C. held a tax deed, and was in possession; that he had held possession for years, and had collected rent in excess of the taxes paid by him; that the tax deed was void; and prayed, first, for possession of the undivided half; second, partition between himself and B.; and, third, for recovery of rents and profits. The case was tried by the court without a jury. Special findings of fact were made. A. was found to be the owner of the half, and possession and partition were awarded. In respect to the rents the court found the amount received by C. and the taxes paid by him, and the excess of the former over the latter; but further stated in the findings that A.'s claim for rents, being a matter of accounting between A. and C, and not affecting all the parties to the action, could not be determined therein, and was refused. In the entry of the judgment or decree was a formal order dismissing plaintiff's claim for an accounting with C. and judgment against him for the excess of rents over taxes, but such order of dismissal was not in terms stated to be without prejudice. Held that, notwithstanding this omission, A. was not estopped from prosecuting a subsequent action against C. to recover the excess of rents over taxes. Smith v. Auld, 1 P. 626, 31 Kan. 262. In an equitable suit in the nature of a creditors' bil, two of the parties defendant filed answers and cross-petitions, one setting up a judgment against the owner of the land in controversy, and the other a mortgage. A decree was entered adjudging the mortgage lien to have priority over the judgment, but no decree of foreclosure of the mortgage was rendered. The cross-petition of the mortgagee had attached thereto a copy of the note secured by the mortgage, which showed its maturity, but there was no allegation or proof that it was due. The special prayer for a foreclosure was based on a contingency which did not happen. Held that, in a subsequent suit to foreclose the mortgage, a plea of former adjudication by the holder of the judgment cannot be sustained. First Nat. Bank v. Kingman & Co., 64 P. 65, 62 Kan. 571. 49 Where, in a former action of false arrest and imprisonment, plaintiff alleged wrongful attachment of his property to show malice, but when the action was tried the attachment had not been vacated and damages for wrongful attachment could not have been awarded, a judgment for plaintiff was not res judicata of his damages for wrongful attachment of his property. Murphree v. Anderson, 140 P. 880, 92 Kan. 370. 50 Chanute Brick & Tile Co. v. Gas Belt Fuel Co., 130 P. 649, 89 Kan. 177. finding by the court in defendant's favor as to liability upon the notes without a finding as to liability upon the account, with a general judgment for costs in defendant's favor, such judgment will be considered conclusive of the issues as to indebtedness upon the account, and to bar an action subsequently begun to recover thereon.51 § 1420. Splitting actions-Single and entire Where separate actions are brought for different parts of a cause of action, a judgment upon the merits in one will be available as a bar to the other; 52 but, where separate actions are prosecuted for distinct causes of action which might have been united in one petition, a judgment in one action is not a bar to the others.58 Each contract affords one, and only one, cause of action. The case of a contract containing several stipulations, to be performed at different times, is no exception, although an action may be maintained on each stipulation as it is broken, before the time for the performance of the others.54 § 1421. Accounts Where a creditor splits up a cause of action on a running account, and recovers on a part of the account, the adjudication is a bar to a recovery on the remaining portion."" 51 John V. Farwell Co. v. Lykins, 52 P. 99, 59 Kan. 96. 52 Akin v. Bonfils (Okl.) 169 P. 899. "The suit and recovery on a portion of a note is a bar to a recovery on the remainder. Wells v. Hickox, 40 P. 821, 1 Kan. App. 485. The reason which precludes splitting a cause of action forbids its repeated use in different kinds of relief which could have been had in the first action. Naugle v. Naugle, 132 P. 164, 89 Kan. 622. 53 Akin v. Bonfils (Okl.) 169 Pac. 899. The right of a creditor having various claims against a corporation to exact payment from a stockholder is not such a single demand that by placing one such claim in judgment against the stockholder he is precluded from proceeding against him upon the others. Manley v. Park, 75 P. 557, 68 Kan. 400, 66 L. R. A. 967, 1 Ann. Cas. 832, Id., 76 P. 1130. 54 Whitaker v. Hawley, 1 P. 508, 30 Kan. 317. 55 Bolen Coal Co. v. Whittaker Brick Co., 35 P. 810, 52 Kan. 747. Defendant, in a sworn statement which contained the debits and credits of an account between the parties, and which extended over a long period, confessed judgment for the amount asked by plaintiff. Held, that the judgment operated as a bar to an action by defendant for an item which, if correct, constituted a part of the unsettled account upon which he had already confessed judgment. Manley v. Tufts, 54 P. 683, 59 Kan. 660. § 1422. Installments A judgment for the plaintiff for installments due and for the defendant for installments not yet due, is not a bar to the plaintiff's subsequent action for such unpaid installments after the cause of action therefor accrued.56 § 1423. Torts A recovery against the sheriff for part of goods wrongfully taken on attachment is a bar to a later action between the same parties to recover for the remainder of the same stock of goods, though taken and sold under another attachment, levied before the first action was brought.57 A judgment in an action against an officer for the wrongful seizure of goods, for the recovery of a part of the goods demanded, is a bar to a subsequent action for the balance of the goods, where all were seized at the same time and under the same writ.58 Where negligent injuries to realty are permanent, the owner thereof can recover his entire damages in one action,59 and such recovery is a bar to a subsequent action on the same facts.60 56 Barnett v. Worrell, 46 Okl. 60, 148 P. 133. 57 Burdge v. Kelchner, 72 P. 232, 66 Kan. 642. 58 Thisler v. Miller, 36 P. 1060, 53 Kan. 515, 42 Am. St. Rep. 302. 59 St. Louis & S. F. R. Co. v. Ramsey, 132 P. 478, 37 Okl. 448. 60 Where an overflow is of a permanent nature, springing from the manner in which a ditch was completed, the land of the abutting owner necessarily being injured thereby, a recovery by such owner of his damages for depreciation of the value of his property results in the consent by such owner to the maintenance of the ditch, concluding him and any subsequent owner. Chicago, R. 1. & P. Ry. Co. v. Davis, 109 P. 214, 26 Okl. 434. Where the owner of lands adjacent to a permanent dam sued to recover damages because they were made subject to overflow, and the answer set up the record in a former action wherein the plaintiff recovered damages from the erection of the dam, the facts pleaded constituted res judicata. Hubbard v. Spring River Power Co., 131 P. 1182, 89 Kan. 446. The judgment in an adjacent property owner's action for damages from the construction of a railroad held res judicata, so as to preclude the same damages being made the basis of another suit against a lessee of the railroad. Marshall v. Wichita & M. V. R. Co., 152 P. 634, 96 Kan. 470. A judgment for plaintiff in an action for wrongfully causing his land to be overflowed is a bar to another action for damages resulting from the same overflow to land which forms a part of the tract involved in the former action, though that action was for damages to growing crops, while the latter action is for preventing plaintiff from planting and cultivating the ground. Wichita & W. R. Co. v. Beebe, 18 P. 502, 39 Kan. 465. HON.PL.& PRAC.-86 (1361) |