Andrews v. Sch.-Dist. No. 4 of Otter

• Decision Date: 09 March 1886
• Citation: 35 Minn. 70,27 N.W. 303
• Parties: ANDREWS AND OTHERS, COPARTNERS, ETC., v SCHOOL-DISTRICT NO. 4. OF OTTER TAIL COUNTY.
• Court: Minnesota Supreme Court

35 Minn. 70

27 N.W. 303

ANDREWS AND OTHERS, COPARTNERS, ETC.,vSCHOOL-DISTRICT NO. 4. OF OTTER TAIL COUNTY.

Supreme Court of Minnesota.

Filed March 9, 1886.

Appeal from an order of the district court, Otter Tail county.

Chas. L. Lewis, for appellants, A. H. Andrews and others, copartners, etc.

Clapp, Woodard & Cowie, for respondent, School-district No. 4 of Otter Tail county.

VANDERBURGH, J.

This action is for the value of goods alleged to have been sold and delivered to the defendant. The plaintiffs' allegations are denied by the answer, which also sets up as new matter a former adjudication in bar. As the demurrer to the denials was properly overruled, (C. N. Nelson Lumber Co. v. Carney, 25 N. W. Rep. 406,) we need only inquire as to the sufficiency of the answer in respect to the alleged former adjudication.

To work an estoppel the former suit must have been determined on the merits. It appears from the answer in this action that upon the trial of the former suit, after the plaintiffs had submitted their evidence, the defendant made a motion for “judgment upon the pleadings and evidence now before the court” and that thereupon the court granted the motion, and directed that judgment should be accordingly so entered for the defendant. The decision of this motion necessarily determined the question as to the sufficiency of the plaintiffs' evidence “to substantiate their claim or right to recover;” hence the only judgment that the court could properly order at that stage of the case was a judgment of dismissal. Gen. St. 1878, c. 66, § 262, sub. 3; Craver v. Christian, 26 N. W. Rep. 8. A dismissal before final submission is not a bar to a subsequent action, and no finding or verdict is required in such case. Thompson v. Myrick, 24 Minn. 10. Before final submission, therefore, the court may take a case from the jury, and dispose of it upon the evidence without a verdict, which would properly be a dismissal; and so, after submission, it may order a verdict, which would be a disposition upon the merits. Woodling v. Knickerbocker, 31 Minn. 271;S. C. 17 N. W. Rep. 387.

Taking the case from the jury as alleged was not a disposition of the case upon the merits, and it is not to be presumed that the court erroneously rendered judgment upon the merits, and for aught that we can see, the order for judgment made was consistent with and would warrant a judgment of dismissal; and it is not alleged, nor does it affirmatively appear, that the judgment was rendered upon the merits. A particular action is finally terminated by a judgment of dismissal in favor of the defendant as well as upon the merits. Dowling v. Polack, 18 Cal. 626. A judgment in form for the defendant may or may not be upon the merits. In either case the plaintiff takes nothing, which was the common-law form, though the preliminary recitals were...