Aetna Life Ins. Co. v. Board of Com'rs of Hamilton County, Kan.

• Decision Date: 04 August 1902
• Docket Number: 1,654.
• Citation: 117 F. 82
• Parties: AETNA LIFE INS. CO. v. BOARD OF COM'RS OF HAMILTON COUNTY, KAN.
• Court: U.S. Court of Appeals — Eighth Circuit

117 F. 82

AETNA LIFE INS. CO. v. BOARD OF COM'RS OF HAMILTON COUNTY, KAN.

No. 1,654.

United States Court of Appeals, Eighth Circuit.

August 4, 1902

Syllabus by the Court.

A former judgment, based upon a general finding for the defendant, which does not disclose which one of several defenses therein was sustained, constitutes an estoppel of the plaintiff therein from maintaining a second action between the same parties upon different causes of action in which the same defenses are interposed and the same issues are presented that were made in the earlier action, unless he makes it appear by pleading of proof that some new and determining issue or matter is involved in the second action that was not, or may not have been, litigated or decided in the first.

Where the same issues are made and the same defenses are interposed in both actions, and there is no pleading or proof that any new determining issue, matter, or right is involved in the second action, it is not material upon which defense or issue the former judgment was based, because an opposite judgment cannot be rendered without relitigating at least one defense and issue determined in the former action and overruling the decision upon it there rendered.

Where the record is such that there is or may be a material issue or matter that may not have been raised, litigated, and decided in the former action, the judgment therein does not constitute and estoppel, unless by pleading or proof the party asserting it establishes the fact that the issue right, or matter in question was actually and necessarily litigated and determined in the former action.

When the second suit is upon a different cause of action, but between the same parties as the first, the judgment in the former action operates as an estoppel in the latter as to every point and question which was actually litigated and determined in the first action, but it is not conclusive as to other matters which might have been, but were not litigated or decided.

When the second suit is upon the same cause of action and between the same parties as the first, the judgment in the former action is conclusive in the latter as to every question which was or might have been presented and determined in the former.

In Error to the Circuit Court of the United States for the District of Kansas.

Frank P. Lindsay, Oliver J. Bailey, and James N. Sedgwick, for plaintiff in error.

C. N Sterry and George Getty, for defendant in error.

On July 20, 1897, the AEtna Life Insurance Company, a corporation brought this action upon coupons, some of which were cut from 20 bonds dated May 7, 1877, and others from 40 bonds dated May 16, 1888. The plaintiff alleged in its petition that these bonds and coupons had been issued by the defendant, the board of county commissioners of the county of Hamilton, state of Kansas; that the plaintiff had purchased them for value, before maturity; that the coupons in suit were overdue; that demand of payment had been made, and that they had not been paid. The answer of the defendant

consisted of a denial that the bonds and coupons were ever issued by it; a denial that the plaintiff ever bought them; an assertion that these bonds and coupons were executed and issued by parties who were not officers of the county of Hamilton, and who had no authority to issue them on its behalf; that the county never received any consideration therefor; and that the plaintiff was estopped from maintaining this action, because in a prior suit between the same parties upon other coupons cut from the same bonds the same defenses had been interposed and the same issues had been presented which were interposed and presented in this case, and those defenses and issues had been tried, and a judgment had been rendered therein for the defendant, and had been subsequently affirmed by this court. AEtna Life Ins. Co. v. Hamilton Co., 25 C.C.A. 94, 79 F. 575. To this answer the plaintiff replied that it was true that in an action between these parties on other coupons cut from the same bonds from which those involved in this action were taken the same defenses were interposed and the same issues were made which were interposed and made in this suit; that evidence was introduced in support of all the allegations of the petition; that a trial was had; that the court found for the defendant, and rendered a judgment in its favor, which was affirmed in this court. But it denied that all the issues and defenses in the former action were litigated and determined, and alleged that the court made no specific finding of facts, but that the judgment in favor of the defendant was rendered upon a general finding in its favor; so that it is impossible to determine which of the various defenses pleaded by the county in that action were sustained. The reply also contains an allegation that the county clerk of Hamilton county made a written certificate to the effect that the actual indebtedness of the county, including that evidenced by the bonds in question, did not exceed $80,000; that he did this for the purpose of persuading the plaintiff to buy the bonds; that the plaintiff was thereby induced to purchase them; and that these facts estop the county from denying their validity. In this state of the case the court below granted a motion for judgment on the pleadings in favor of the defendant upon the ground that the right of the insurance company to recover upon the bonds or the coupons was rendered res adjudicata by the former judgment to the effect that they were void. The writ of error challenges this decision.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge.

SANBORN Circuit Judge, after stating the case as above, .

The defenses interposed and the issues raised in this case are identical with those presented in the former action, in which judgment was rendered for the defendant upon coupons cut from the same bonds as were those in this suit. The only new allegation in this action is that the plaintiff was induced to buy the bonds and coupons by the certificate of the county clerk that the indebtedness of the county, including that evidenced by the bonds in question, did not exceed $80,000 and this averment is immaterial, because the county clerk had no statutory or other authority to make such a certificate for the county. City of Huron v. Second Ward Sav. Bank, 86 F. 272, 282, 30 C.C.A. 38, 48. 49 L.R.A. 534. The fact that the issues of demand and refusal of payment in the two actions differ because they must have been made at different times, since the coupons in this action were not due until after the former action was commenced, is of no consequence, because a demand and refusal were not essential to the maintenance of either action, and the legal presumption is that the former judgment was based on a sufficient defense, and not upon an immaterial issue. Speer v. Board, 88 F. 749, 753, 754, 32 C.C.A. 101, 105; Hughes Co. v. Livingston, 43 C.C.A. 541, 556, 104 F. 306, 321. The only real question in the case, therefore, is this: Is a former judgment upon a general finding in favor of the defendant which does not disclose which one of several defenses was sustained, an estoppel of the plaintiff therein from maintaining a second action upon different causes of action against the same defendant in which the same defenses are interposed and the same issues are presented that were made in the earlier action? Counsel for the plaintiff argue with great force and persuasiveness that this question must be answered in the negative. They plant themselves upon the declaration of the supreme court in Russell v. Place, 94 U.S. 606, 608, 24 L.Ed. 214, that 'it is undoubtedly settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record of be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record,-- as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered,--the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible. ' They cite in support of their contention Cromwell v. Sac. Co., 94 U.S. 351, 24 L.Ed. 195; Board v. Sutliff, 38 C.C.A. 167, 97 F. 270; Packet Co. v. Sickles, 5 Wall. 580, 18 L.Ed. 550; Nesbit v. Independent Dist., 144 U.S. 610, 12 Sup.Ct. 746, 36 L.Ed. 562; Railway Co. v. Leathe, 84 F. 103, 28 C.C.A. 279; and Bank v. Williams (Wash.) 63 P. 511,-- and they insist that, because the general finding and judgment in the first action do not indicate which one of the several defenses pleaded in both actions was litigated, nor upon which one the judgment was based, that judgment cannot constitute an estoppel upon any one of these defenses or issues, and that every defense there presented may be again litigated in this action, unless the defendant proves by extrinsic evidence which one or more of them were actually litigated and determined in the former suit. The propositions that there is nothing in the record in the former action nor in the pleadings in this action that discloses which one of the several defenses interposed in both actions was sustained in...