Beh v. Bay

• Decision Date: 08 April 1905
• Citation: 103 N.W. 119,127 Iowa 246
• Parties: BEH v. BAY ET AL.
• Court: Iowa Supreme Court

127 Iowa 246

103 N.W. 119

BEH

v.BAY ET AL.

Supreme Court of Iowa.

April 8, 1905.

Appeal from District Court, Shelby County; O. D. Wheeler, Judge.

Suit at law on a promissory note. Judgment for the plaintiff on the pleadings. The defendant J. O. Ramsay appeals. Affirmed.Cullison & Robinson, for appellant.

Byers, Lockwood & Byers, for appellee.

SHERWIN, C. J.

H. Ramsay Bay, as principal, and J. O. Ramsay, the appellant, as surety, executed and delivered to the plaintiff the note in suit. After it became due, and before this suit was brought, H. Ramsay Bay sued the plaintiff herein for the possession of the note; alleging that he had paid the same in full. Issue was duly joined and tried to a jury, which found that the note had not been paid, and there was a judgment against Bay for costs. In his answer to this suit, the appellant, J. O. Ramsay, admitted the execution of the note; alleged his relation thereto, and that it had been paid by his principal. The plaintiff then pleaded the judgment in the former action as an adjudication of the question of payment. There was a demurrer to this plea, which was overruled, and, the appellant electing to stand on his demurrer, judgment was rendered against him.

It was admitted that the payment pleaded by the appellant, Ramsay, was the same payment relied on by H. Ramsay in his suit for the possession of the note. The only question for determination, then, is whether the former adjudication that the principal had not paid the note is conclusive on the surety. A judgment of a court of competent jurisdiction is conclusive between the parties to the action, either as a plea in bar or as evidence in estoppel, not only as to every question actually in issue and decided, but every question within the issues which might have been presented and decided. And it is further true that a judgment is as effective on privies as on parties. The appellant was not a party to the action between his codefendant and the plaintiff here, and, if the judgment in that case is a bar in this, it must be because of his privity with Bay. It is the general rule that the relation of surety and principal does not create privity, in the sense in which the law of estoppel is applied. Bigelow on Estoppel (4th Ed.) 138, and cases cited; McConnell v. Poor, 113 Iowa, 133, 84 N. W. 968, 52 L. R. A. 312;Gorman v. Williams, 117 Iowa, 560, 91 N. W. 819;McDonald & Co. v. Gregory, 41 Iowa, 513. Privity relates to persons in their relation to property, and means only a mutual succession or relation to the same right of property. McDonald & Co. v. Gregory, supra. See, also, 24 Am. & Eng. Enc. of Law, 746, and cases cited. In the former litigation, however, but one question was determined, and...