Norwood v. McDonald

Citation142 Ohio St. 299,52 N.E.2d 67
Decision Date08 December 1943
Docket Number29319.
PartiesNORWOOD v. McDONALD et al.
CourtUnited States State Supreme Court of Ohio

Syllabus by the Court.

1. A final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction is conclusive of rights, questions and facts in issue as to the parties and their privies, and is a complete bar to any subsequent action on the same claim or cause of action between the parties or those in privity with them.

2. A judgment or decree in a former action does not bar a subsequent action where the causes of action are not the same, even though each action relates to the same subject matter.

3. A point or a fact which was actually and directly in issue in a former action and was there passed upon and determined by a court of competent jurisdiction may not be drawn in question in any future action between the same parties or their privies, whether the cause of action in the two actions be identical or different.

4. To determine whether a second action is based upon the same cause of action as that litigated in a former action claimed to be a bar to the second action under the doctrine of res judicata, the primary tests are the identity of investitive facts creating the right of action in each case; the identity of the evidence necessary to sustain each action; and the accrual of the alleged rights of action at the same time.

5. A legal right is an interest with which the law invests a person, and for the infringement of which it gives him a remedy. The investiture of such right arises from and depends upon operative facts and circumstances which, under the law, create the right, preserve it and assure a remedy for its infringement.

6. Where a judgment is relied on by way of evidence as conclusive per se between the parties in a subsequent suit it must appear by the record of the former suit that the particular controversy sought to be precluded was therein actually or necessarily tried and determined.

7. To render a former judgment an absolute bar to a subsequent suit embracing the same matter in controversy, the former judgment must be specially pleaded and proved. A failure or neglect to so plead and prove such former adjudication constitutes a waiver of the defense of res judicata.

8. While all claims of right embraced in a single cause of action must be prosecuted simultaneously, a litigant cannot be required to prosecute simultaneously in a single action multiple causes of action, even though they relate to the same subject matter.

9. The rule that a judgment is conclusive, not only as to what was determined in the action but as to all issues which properly might have been determined therein, is limited to cases involving a single cause of action.

10. Where a plaintiff obtains a judgment granting him one of two alternative or mutually exclusive remedies for the assertion of the same right or the same relief, he is precluded from thereafter maintaining an action based on the other remedy but where a judgment is for the defendant in a suit based upon one of two mutually exclusive remedies, the plaintiff is not precluded from thereafter maintaining an action based on the other remedy.

11. A plaintiff's choice of a fancied remedy which never existed and the futile pursuit of it because of a mistake as to the facts or the law, though the first action proceeds to judgment, does not preclude such plaintiff from thereafter invoking a proper remedy, in the absence of facts which create an estoppel.

Appeal from Court of Appeals, Hamilton County.

See, also, 140 Ohio St. 547, 45 N.E.2d 603.

Ada L. McDannold had at the time of her death on April 22, 1938, the fee simple title to certain real estate located in the city of Cincinnati. In this present action filed January 31, 1940, against the administrator of the estate of Ada L. McDannold and Thomas A. McDonald, an alleged heir at law of Ada L. McDannold, the plaintiff, James N. Norwood, claims that he is entitled to the possession of the real estate in question because he was the common-law husband of Ada L. McDannold, and therefore is her sole heir at law. He prays for possession of the property and for damages in the sum of $2,500 for being unlawfully kept out of possession.

As a defense to the present action the defendants, in their fourth amended answer, set out the facts that on July 12, 1938, the plaintiff, Norwood, filed and prosecuted an action in which they were made defendants; that in the former action plaintiff claimed that title to the property in question was, in 1934, taken in the name of the decedent, Ada L. McDannold, and so continued until her death; that such real estate was held in trust by the decedent for herself and for the plaintiff, he having furnished the consideration for the purchase of such property; that as a result the whole beneficial interest in the real estate vested, at the death of decedent, in the plaintiff, James N. Norwood; that on May 26, 1939, the trial court dismissed the plaintiff's petition in that action; that on hearing de novo on appeal to the Court of Appeals that court entered judgment for the appellees for the reason that 'the appellant has not established his case by that degree of proof required by law'; that such judgment became final; and that such adjudication was conclusive and is res judicata as to all claims which plaintiff asserts or can assert in this present action.

To this defense of res judicata, the plaintiff in this action, by reply, alleged that the sole issue in the former case, was whether the decedent held the real estate in fee simple or as trustee, and that the decision therein established only that the decedent, Ada L. McDannold, did not hold title to the property as trustee, but in fee simple. The plaintiff also alleged in his reply that after the present action was instituted, to wit, on February 21, 1940, the defendants in this case filed in the Common Pleas Court an independent action against the plaintiff setting forth all of the allegations contained in their first defense herein and prayed that the plaintiff, James N. Norwood, defendant therein and plaintiff herein, be enjoined from prosecuting this action on the ground that all the rights of James Norwood in and to the real estate described were determined in such former action which became res judicata as to the claims of plaintiff in this action; that on the hearing of such injunction action the Common Pleas Court rendered judgment for Norwood, against O'Brien, administrator, and McDonald; that on appeal de novo in the Court of Appeals a like judgment was rendered on the ground that 'appellants are not entitled to injunction as prayed for in the petition'; that such judgment became final, and that such adjudication in that case constituted res judicata against the plaintiffs O'Brien and McDonald as to matters set out in their first defense in their fourth amended answer in this action.

In the original action above referred to, the defendant Thomas V. McDonald, in the first defense set out in his amended answer to plaintiff's petition therein, alleged that he was the sole heir at law of the decedent Ada L. McDannold and, as such, inherited the property in question. No reply was filed to this answer by the plaintiff, Norwood. However, the defendant Thomas A. McDonald made no prayer for affirmative relief in his amended answer and filed no cross-petition in this original or first action to establish title to the property in himself. The court did not enter any decree in his favor on that issue, but simply dismissed the petition of the plaintiff. On appeal, the Court of Appeals in such original action, on hearing de novo, did not enter any decree in favor of the plaintiff, Norwood, on the issue of title to the property, but again dismissed plaintiff's petition on the finding 'that the appellant [Norwood] has not established his case by that degree of proof required by law.'

Upon trial of the present action in the Common Pleas Court, a jury found the issues in favor of the plaintiff and returned a verdict for the plaintiff in the sum of $2,364.58. A motion for new trial and a motion for judgment notwithstanding the verdict were filed by the defendants. The trial court sustained the motion for judgment notwithstanding the verdict, but found it unnecessary to pass upon defendants' motion for new trial because of the judgment in their favor. On request of plaintiff, the trial court in this case made separate findings of fact and conclusions of law, finding as a conclusion of law that the 'plaintiff could and should have set up all claims he had for the property in question in the first action * * * and that the defendants are entitled to a judgment dismissing the plaintiff's petition notwithstanding the verdict * * *.'

There was much testimony offered relating to the question as to whether a common-law marriage existed between the plaintiff, Norwood, and Ada L. McDannold at the time of her death, but the nature of that evidence need not be related in this statement of facts because the jury resolved that issue in favor of the plaintiff, and the trial court entered judgment in favor of the defendants notwithstanding the verdict, on the sole issue of res judicata.

Upon appeal in this action to the Court of Appeals on questions of law, that court found no error prejudicial to the plaintiff and affirmed the judgment of the Common Pleas Court. The case is now in this court for review following the allowance of plaintiff's motion to certify the record.

Jack Glenn Williams and Robert F. Badgley, both of Cincinnati, for appellant.

H. G. Hightower and O'Brien & Beck, all of Cincinnati, for appellees.

HART Judge.

The appellant failed, in a former action against the...

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4 cases
  • Meech v. Hillhaven West, Inc.
    • United States
    • Montana Supreme Court
    • June 29, 1989
    ... ...         State v. Preston (1962), 173 Ohio St. 203, 181 N.E.2d 31, 36 (quoting Norwood v ... Page 498 ... McDonald (1943), 142 Ohio St. 299, 52 N.E.2d 67, 72). The maxim, "For every wrong there is a remedy" thus bestows upon the ... ...
  • McCarthy v. Lee
    • United States
    • Ohio Supreme Court
    • December 28, 2023
    ...bar to any subsequent action on the same claim between the same parties or those in privity with them. Id., citing Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67 paragraph one of the syllabus, and Whitehead, paragraph one of the syllabus. Moreover, an existing final judgment or decree ......
  • State ex rel. Wilson v. Preston
    • United States
    • Ohio Supreme Court
    • March 14, 1962
    ...is that in mandamus the relator is not seeking to recover upon a 'cause of action.' In the case of Norwood v. McDonald et al., Admrs., 142 Ohio St. 299, 309, 52 N.E.2d 67, 72, Hart. J., defined a cause of action 'as the fact or facts which establish or give rise to a right of action, the ex......
  • State of Ohio, ex rel. Michael D. Filichia v. City of Columbus Et Al., -, 89-LW-2951
    • United States
    • Ohio Court of Appeals
    • September 12, 1989
    ... ... appellant's complaint were actually or necessarily tried ... and determined. Norwood v. McDonald (1943), 142 Ohio ... St. 299, paragraph six of the syllabus ... Moreover, appellant asserted in his ... ...

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