Calvert v. Hobbs
| Decision Date | 25 April 1904 |
| Parties | CHAS. CALVERT, Appellant, v. W. K. HOBBS, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Mercer Circuit Court.--Hon. P. C. Stepp, Judge.
Judgment reversed and cause remanded.
Fred W Coon and Eldon C. Orton for appellant.
(1) In the former suit, Girdner v. Calvert, for unlawful detainer the plaintiff had no cause of action except that given by sections 4107 and 4108, which provide that in case the tenant, Hobbs, should sublet or violate any of the provisions of his lease, the landlord, after giving the usual ten days' notice, shall have the right to re-enter and oust the subtenant. (2) Girdner, the owner of the land, having leased the land to Hobbs, had no right to sue Calvert for the possession, except it was on the ground that Hobbs had sublet. By the provisions of section 3352 his right to sue had vested in Hobbs, the lessee. The landlord has no such possession as will enable him to complain of a disseizin of his tenant. McCartney v. Alderson, 45 Mo. 35; Sexton v. Hull, 45 Mo.App. 345; Waples v Jones, 62 Mo. 440; McCartney v. Alderson, 49 Mo. 456; Kaulleen v. Tillman, 69 Mo. 510; Gillett v. Mathews, 45 Mo. 307; Hussier v. Zallee, 24 Mo. 13; Reed v. Bell, 26 Mo. 218; Pentz v. Kuesler, 41 Mo. 447; Burns v. Palvik, 27 Mo. 434; Kingman v. Abington, 56 Mo. 46; Lindenbower v. Bently, 86 Mo. 515. (3) To be res adjudicata in favor of defendant's contention in this suit it must appear that it was a material fact established in the Girdner case that Hobbs had not sublet to Calvert, and that this fact was material to maintain Girdner's right of action. (4) Having proceeded to try the issue of res adjudicata the court should, under the evidence, have found that Hobbs had sublet and that he was estopped from claiming otherwise. (5) Hobbs, defendant in the suit at bar, now shows that he promoted the Girdner suit, hence he is estopped from denying the facts on which that suit was based. Landis v. Hamilton, 77 Mo. 565; 2 Van Fleet on Former Adjudication, 1059. (6) The court erred in not submitting the issue of res adjudicata to the jury. We can find no case when this question has been tried by the court except when the jury was waived. 6 Wait's Actions and Defenses, 800; Hunter v. McElhaney, 48 Mo.App. 234; West v. Moser, 49 Mo.App. 201.
Ira B. Hyde & Son and Martin Read for respondent.
(1) Both Calvert and Hobbs were bound by the former suit, and the issues made and tried in it are res adjudicata. 21 Am. and Eng. Ency. Law (1 Ed.), 133; Strong v. Ins. Co., 62 Mo. 289; Wood v. Ensel, 63 Mo. 193; State ex rel. v. Coste, 36 Mo. 437; Koontz v. Kaufman, 31 Mo.App. 397; Nave v. Adams, 107 Mo. 414; State ex rel. v. Branch, 134 Mo. 592. (2) All issues made and passed upon, whether principal or subordinate, will be regarded as adjudicated. Issues actually tried and adjudicated may be shown by parol evidence and need not necessarily appear from the record. 134 Mo. 604; 21 Am. and Eng. Ency. Law, 185; State ex rel. v. Branch, 134 Mo. 592. (3) A party to an action who suffers judgment to go against him can not in a subsequent proceeding, either in equity or at law, cause such judgment to be reviewed by an allegation of the same facts which were adjudged insufficient when set out in his answer as a defense in the former action. Caldwell v. White, 77 Mo. 471; 21 Am. and Eng. Ency. Law (1 Ed.), 187, and note; Caperlin v. Schmidt, 85 Am. Dec. 187; Lee v. Kingsburg, 62 Am. Dec. 546. (4) Parol evidence is proper to show whether a question was determined in a former suit. Hickerson v. Mexico, 58 Mo. 61.
Early in 1903, defendant (in writing) leased a farm of one Girdner for a term of three years. He then sublet a house and a small tract of land (a part of the farm) to plaintiff for one year, but without the written consent of Girdner which the written lease expressly required. Defendant then without good cause prevailed upon Girdner to oust plaintiff by procedure under the statute. Girdner being absent in another State, defendant was the active manager of the ousting proceeding and employed the attorneys therein, though no party to the record. Plaintiff filed an answer to the proceeding, in which he alleged that Girdner should be estopped from taking advantage of the lease requiring written consent and should not be allowed to turn him out, for the reason that he, plaintiff, told Girdner that defendant had sublet to him the portion of the premises referred to and that Girdner told him it was all right, that defendant had a right to sublet it. That plaintiff relying upon this assurance did not look for other property which he might then have rented, and that it was, then, at time of the ouster proceedings, too late to secure another place. Plaintiff's defense did not prevail and he was turned out of possession. He thereupon brought the present action before a justice of the peace wherein he set up in his written statement as his cause of action the facts just stated as being in his answer to the ouster proceedings, viz: as to defendant's subletting to him and then procuring Girdner to dispossess him, but omitting any reference to the estoppel against Girdner. He obtained judgment but on appeal to the circuit court the judgment was for defendant and plaintiff thereupon brought the case here.
At the trial in the circuit court it was ruled that the ouster proceedings of Girdner against this plaintiff were res adjudicata in this case, and a verdict was directed for defendant.
We do not see wherein there is any legal ground for holding that the ouster proceedings of Girdner against this plaintiff could be an adjudication of plaintiff's right of action against this defendant. Conceding that this defendant was the moving spirit in the ouster proceedings and that he managed the same for Girdner, that adjudication did not touch or relate to the cause of action here pending. Plaintiff was defeated in that action and dispossessed of the...
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