Boyer v. Austin

• Decision Date: 24 September 1880
• Citation: 54 Iowa 402,6 N.W. 585
• Court: Iowa Supreme Court
• Parties: BOYER & BARNES v. AUSTIN.

54 Iowa 402

6 N.W. 585

BOYER & BARNES

v.AUSTIN.

Supreme Court of Iowa.

Filed September 24, 1880.

Appeal from Mahaska district court.

Action at law upon the guaranty of a promissory note. The cause was submitted to the court without a jury, and, upon a finding of facts, a judgment was rendered for defendant. Plaintiffs appeal.John F. Lacey and William R. Lacey, for appellants.

Williams & McMillan, for appellee.

BECK, J.

1. The answer of the defendant, among other defences, pleaded a former adjudication between the same parties, in an action in the circuit court, involving the same cause of action. Other defences set up in the answer need not be specified.

The district court found that in an action between plaintiffs and defendant, upon the guaranty sued upon in this action, the circuit court rendered a judgment in the following words: “And now, on this day, the parties appear,--the plaintiffs by their attorney, and the defendant by his attorneys,--and the court having had this cause under advisement, and being fully advised in the premises, finds for the defendant and against the plaintiff, on the ground that it is not shown that the note or judgment cannot be collected of the makers of the said note, for the reason that the plaintiffs have not exhausted their legal remedy against the maker, and thereupon the court orders judgment to be entered against the plaintiffs for costs. It is thereupon ordered and adjudged by the court that the defendant do have and recover of the plaintiffs the costs of the suit, taxed at $______.”

The court also found that in the action in the circuit court the defendant, among other defences, pleaded that plaintiffs had made no effort to collect the note, and that the makers had property out of which the note could have been collected. The court further found that upon a judgment in the circuit court defendant caused execution to be issued against the makers of the note, and used due diligence to collect it, and exhausted all his legal remedies. Upon the facts thus found the district court determined that the judgment in the circuit court was on the merits, and not in abatement, and that it is a bar to this action, and therefore rendered judgment for defendant.

2. The only question before us involves the correctness of the conclusions of the court below upon the facts found, and involves the determination of the effect of the judgment of the circuit court, whether it is a judgment upon the merits, or is a judgment upon matters which only go to the abatement of the action. Upon this question there can be no mistake, for the language of the judgment is as plain as it can be made, that it is based upon facts found which only go to the abatement of the action.

The facts show that plaintiffs were not entitled to judgment for the reason that the cause of action had not yet accrued, because plaintiffs had...