Anderson v. Anderson, 33039

• Decision Date: 07 December 1951
• Docket Number: No. 33039,33039
• Citation: 50 N.W.2d 224,155 Neb. 1
• Parties: ANDERSON et al. v. ANDERSON et al.
• Court: Nebraska Supreme Court

Page 224

50 N.W.2d 224

155 Neb. 1

ANDERSON et al. v. ANDERSON et al.

No. 33039.

Supreme Court of Nebraska.

Dec. 7, 1951.

Syllabus by the Court.

1. A motion for judgment on the pleadings admits the facts well pleaded in the pleading of the adversary and all reasonable inferences resulting from them, but does not admits conclusions contained therein. It concedes that the allegations of the pleading of the litigant making the motion which are controverted by the pleading of the adversary are untrue.

2. The general rule is that, while the court will take judicial notice of its records, it will not in one case take such notice of the record in another case.

3. The doctrine that the court will take judicial notice of a final order made by it in another case which is so interwoven and interdependent with the pending case as to justify the application of it is an exception to the general rule, recognized by the necessity of giving effect to a former holding which finally decided questions of fact and law.

4. All matters in issue in a former action and judicially determined are conclusively put at rest by a judgment therein and may not again be litigated in a subsequent action.

5. The plea of res judicata applies, except in special cases, not only to points upon which the court was required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties might have brought forward therein.

6. A litigant may not split a cause of action. If he might have had complete relief in an action which was prosecuted to final judgment, he may not again vex his adversary with another suit based on the same wrong.

7. A litigant may not present an issue for determination and avoid the effect of an adjudication or estoppel by withholding proof thereof.

8. Facts alleged in a petition to which the defendant in his answer pleads a waiver, an estoppel, or a matter to avoid, will be treated as admitted, though the answer also contains his general denial.

Fred Jack, Tekamah, John A. McKenzie, E. D. O'Sullivan, Sr., Omaha, for appellants.

Swenson, Viren & Turner, Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This is an action for partition of the northwest quarter and the north half of the southwest quarter of Section 19, Township 22 North, Range 10 East of the 6th P. M., Burt County, Nebraska. The pleadings at the time of the entry of decree were the amended and substituted petition of appellees, the answer of appellants, and the motion for judgment on the pleadings made by appellees. The basis of the motion, as stated therein, was that the matters pleaded in the answer had been previously adjudicated by this court adversely to appellants and that they were barred and estopped from interposing them as a defense. The case was submitted to the district court. It found that the motion should be sustained and it rendered a decree of partition of the land. Appellants by this appeal seek a reversal of the decree.

The substance of the petition, so far as necessary to be stated herein, was that: The land was conveyed by warranty deed in fee simple to Charles P. Anderson and his son, Elmer S. Anderson, as tenants in common, to each an undivided, one-half thereof. Charles P. Anderson died intestate and left surviving him his heirs Caroline Anderson his widow, Elmer S. Anderson, Arnold J. Anderson, Harry R. Anderson, and Clarence A. Anderson, his sons. Clarence A. Anderson and Josie Anderson, his wife, conveyed their interest in the land to Caroline Anderson. Elmer S. Anderson died intestate leaving surviving him his heirs Anna M. Anderson, his widow, Lucile Marie Thorndyke, Gladys Bernice Jack, Clifford E. Anderson, Charles T. Anderson, and Roy I. Anderson, his children. Caroline Anderson died testate. Her will was admitted to probate. She was seized of an undivided one-fourth of the land. She devised her interest in the north half of the northwest quarter of said Section 19 to Clarence A. Anderson, and she devised her interest in the south half of the northwest quarter and the north half of the southwest quarter of Section 19 to the children of Elmer S. Anderson, deceased. The appellees Arnold J. Anderson, Harry R. Anderson, and Clarence A. Anderson, sons of Charles P. Anderson, and appellants Anna M. Anderson, Lucile Marie Thorndyke, Gladys Bernice Jack, Clifford E. Anderson, Charles T. Anderson, and Roy I. Anderson, widow and children of Elmer S. Anderson, deceased, were the owners as tenants in common of the land, and the share of each was specifically alleged. The history of, proceedings had, and the decree rendered in a suit to quiet title to the land brought and prosecuted by the appellants above named against the appellees named above and Josie Anderson, the wife of Clarence A. Anderson, in the district court for Burt County, Nebraska, and the fact that an appeal was prosecuted from the decree and a final determination made by this court adverse to the claims and contentions of the appellants, were alleged and set forth, including allegations concerning the pleadings in the district court, a copy of the decree rendered therein, and a copy of the opinion and decision of this court. Appellees asked for a partition of the land.

The parts of the answer important to a determination of the appeal are: A denial of the allegations of the petition, except an admission that the warranty deed by which the land was conveyed named Charles P. Anderson and Elmer S. Anderson as grantees, and that the deed was recorded in the office of the register of deeds of Burt County, Nebraska, on March 8, 1920; the allegations therein that Elmer S. Anderson on May 23, 1919, purchased the land and agreed to pay therefor $67,900, and that he during his lifetime and appellants thereafter have paid all of the purchase price except $11,000, represented by a mortgage on the land; that Elmer S. Anderson took possession of the land on the 4th day of March 1920, and thereafter had until his death on the 22d day of March 1940, continuous, exclusive, notorious, and adverse possession thereof, and after his death appellants continued and had like possession and occupancy of said premises until the time of the filing of the answer, and by virtue thereof they were the absolute owners of all of the premises and were in the actual and exclusive possession thereof; that appellees, or any of them, have no right, title, or interest in or to any part of the land, and they, or any of them, have not been in the possession thereof; that an appeal was taken to this court from the decree rendered in the suit to quiet title by the district court, and that the decree was reversed and the case dismissed by this court for the reason that the evidence of plaintiffs in the suit to quiet title (who are the appellants in the pending case) was insufficient to sustain the cause of action to quiet title or the decree rendered by the district court, and that no other matter, question, or issue was considered or determined by this court in the suit to quiet title; and that this court in its opinion or its decision in that case did not determine that appellees in this case were the owners of any part of said property, or were at any time in the possession thereof, or that they ever had any interest of any kind or nature therein. The prayer of the answer was that the court find and adjudge that appellees have no right, title, or interest in or to the land, and that the partition action be dismissed.

The motion of appellees for judgment on the pleadings admitted the truth of the facts well pleaded in the answer of appellants, and all inferences reasonably drawn therefrom. It did not admit conclusions stated in the answer. It conceded the untruth of the allegations of the petition insofar as they were controverted by the answer. If upon the pleadings appellees were entitled by law to judgment in their favor, the motion was properly granted and a decree was justifiably entered. Gilbert v. First National Bank, 154 Neb. 404, 48 N.W.2d 401; International Harvester Co. v. County of Douglas, 146 Neb. 555, 20 N.W.2d 620; Meyer Bros. Drug Co. v. Hirsching-Morse Co., 94 Neb. 309, 143 N.W. 206.

Obviously the correctness of the action of the district court turns on whether or not this court in the prior suit by appellants against appellees for a decree quieting title to the land in appellants adjudicated adversely to them the matters alleged in the answer in this case as a basis for their claim that they are the owners of the land subject only to the mortgage thereon.

Reference is made by statements in the pleadings of the parties to the former action to quiet title, to matters involved therein, the action taken by the district court, the final result of the case as shown by the opinion and decision in this court, and the respective claims of the parties as to the effect thereof on this case. The situation makes appropriate a resort to the doctrine that this court will take judicial notice of a final order made by it in another case which is so interwoven and interdependent with the pending case as to justify the...