Carlisle v. Howes

• Decision Date: 12 November 1897
• Citation: 43 S.W. 191
• Parties: CARLISLE v. HOWES et al.
• Court: Kentucky Court of Appeals

43 S.W. 191

CARLISLE v. HOWES et al.

Court of Appeals of Kentucky.

November 12, 1897

Appeal from circuit court Johnson county.

"Not to be officially reported."

Action by John G. Carlisle against E. F. Howes and others to set aside a sheriff's deed and to recover land. Judgment for defendants, and plaintiff appeals. Affirmed.

G. W Castle, for appellant.

Jas Goble, for appellees.

PAYNTER J.

The appellant, Carlisle, by this action, sought to have a deed set aside which the sheriff of Johnson county had made to Daniels and Preston, and to recover from them the possession of the land described in the deed. Several defenses were pleaded, but only one of them seems to be meritorious, which is that a court having jurisdiction of the parties and the subject of litigation in a former action, involving the same question, had rendered a judgment on the merits of the action which bars the appellant's right to recover in this action. In 1892 the appellant filed an action in the Johnson circuit court, in which he alleges that he was the owner of the same land in dispute in this action; that the appellees had cut and removed a considerable quantity of the timber from the land, and of a certain value, for which he sought a judgment; that they were continuing to cut the timber, and he asked and obtained an injunction to restrain them from doing so. In the answer in that case the appellees denied that Carlisle was the owner of the land, or that they had wrongfully cut and removed the timber. In addition, it was alleged that they were the owners of the land, and pleaded that they acquired title to it by virtue of a sale of the property for taxes, and a deed which the sheriff had made in pursuance of such sale. They did not deny simply that they had not been guilty of the trespass, but denied that Carlisle was the owner of the property, and affirmatively declared they were the owners of it. On the trial of that case the court dismissed the petition. It is true, in that case the plaintiff did not seek to recover the possession of the land or to have vacated the sheriff's deed which had been made to the appellees. But he did claim that he was the owner of the land, and had the right to recover the value of the timber, and restrain the commission of further acts of trespass. The right to recover for cutting and removing the timber depended upon Carlisle's ability to show that he was the owner of the land. He was not in the actual possession of it. It does not appear from the judgment of the court in that case what reasons influenced the court to dismiss the bill. The record shows the title was involved and the bill was dismissed upon the hearing of the case. In order that a judgment will constitute a bar to a subsequent action involving the same issue, it must appear that the case was tried upon its merits. It is contended by the counsel for the appellant that the court did not decide the case upon its merits, because on the trial of the case it was shown that Carlisle had not at that time perfected his title to the land. Counsel then proceeds to argue, as Carlisle did not then have the legal title to the land, but had since perfected his title to it in the United States district court, he is entitled to maintain this action. Had he sought in the first action to recover for the timber cut and removed, and the answer had simply denied the trespass without putting in issue the title to the land, then the judgment would not have been a bar to...