Dimond v. Ely

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtFISK, J.
Citation149 N.W. 349,28 N.D. 426
Decision Date21 September 1914

On petition for rehearing November 11, 1914.

Appeal from District Court, Burke County; C. W. Buttz, Special J.

From a judgment in respondents' favor, plaintiff appeals.


Cowan & Adamson and H. S. Blood, for appellant.

The judgment in the mandamus proceeding is not res judicata to this action. The question of the ultimate right or title to the county seat was not triable in the mandamus proceeding. State ex rel. Butler v. Callahan, 4 N.D. 481, 61 N.W. 1025; State ex rel. Sunderall v. McKenzie, 10 N.D. 132, 86 N.W. 231; People ex rel. Noyes v. Board of Canvassers, 126 N.Y. 392, 27 N.E. 792.

Only such questions as affect the prima facie title of the relator can be tried by mandamus proceeding. Chandler v Starling, 19 N.D. 144, 121 N.W. 198; High, Extr. Legal Rem. § 49; State ex rel. Mead v. Dunn, Minor (Ala.) 46, 12 Am. Dec. 25; State ex rel. Davis v Willis, 19 N.D. 209, 124 N.W. 706.

The order in the mandamus proceeding was a final determination of the matters and issues involved, and the trial court was without jurisdiction to make findings and conclusions, either before or especially after appeal from such order had been taken. Moore v. Booker, 4 N.D. 543, 62 N.W. 607; 2 Enc. Pl. & Pr. 327; 2 Spelling, New Tr. & App. Pr. § 559; Rev. Codes, 1905, § 7222; Ensminger v. Powers, 108 U.S. 305, 27 L.Ed. 737, 2 S.Ct. 643.

Where election officers and electors do their best under the circumstances to hold a valid election, and act in good faith and without any corrupt or fraudulent motive, the election is valid. Kerlin v. Devils Lake, 25 N.D. 207, 141 N.W 756; Rev. Codes 1905, §§ 671, 2334.

Geo. R. Robins and Geo. A. Bangs, for respondents.

A fact or question actually and directly in issue in a former suit and which was there judicially passed upon and determined by a domestic court of competent jurisdiction is conclusively settled by the judgment therein, as to the same parties or privies in future action. 23 Cyc. 1215, 1216; Southern P. R. Co. v. United States, 168 U.S. 1, 42 L.Ed. 355, 18 S.Ct. 18; Southern Minnesota R. Extension Co. v. St. Paul & S. C. R. Co. 5 C. C. A. 249, 12 U.S. App. 320, 55 F. 690; Merriam v. Whittemore, 5 Gray, 316; Doty v. Brown, 4 N.Y. 71, 53 Am. Dec. 350; State ex rel. Davis v. Willis, 19 N.D. 209, 124 N.W. 706.

The dismissal of the writ upon its merits is res judicata as to all issues tried and determined therein. Merrill, Mandamus, § 315, p. 379; State ex rel. Morgan v. Hard, 25 Minn. 460; Santa Cruz Gap Turnp. Joint Stock Co. v. Santa Clara County, 62 Cal. 40; State ex rel. Cook v. Ottinger, 43 Ohio St. 461, 3 N.E. 298; Block v. Bourbon County, 99 U.S. 686, 692, 25 L.Ed. 491, 493; Louis v. Brown Twp. 109 U.S. 162, 165, 27 L.Ed. 892, 893, 3 S.Ct. 92; Holt County v. National L. Ins. Co. 25 C. C. A. 469, 49 U.S. App. 376, 80 F. 686; Kaufer v. Ford, 100 Minn. 49, 110 N.W. 364; State ex rel. Hudson v. Trammel, 106 Mo. 510, 17 S.W. 502; 19 Am. & Eng. Enc. Law, 2d ed. 723; 26 Cyc. 485; 12 Enc. Pl. & Pr. 504; Visher v. Smith, 92 Cal. 60, 28 P. 94; Weed v. Mirick, 62 Mich. 414, 29 N.W. 78; Smeaton v. Austin, 82 Wis. 76, 51 N.W. 1090; Ashton v. Rochester, 133 N.Y. 187, 28 Am. St. Rep. 619, 30 N.E. 965, 31 N.E. 334.

An estoppel by judgment or decree extends to all matters upon which it must have been founded. The judgment is a conclusion, and if necessarily drawn from certain premises, such premises are as conclusive as the judgment itself. 24 Am. & Eng. Enc. Law, 2d ed. 766; Shelby v. Creighton, 65 Neb. 485, 101 Am. St. Rep. 630, 91 N.W. 369; Burlen v. Shannon, 99 Mass. 200, 96 Am. Dec. 733; Harshman v. County Court (United States ex rel. Harshman v. County Court) 122 U.S. 306, 30 L.Ed. 1152, 7 S.Ct. 1171; Perkins v. Walker, 19 Vt. 144; Hayes v. Shattuck, 21 Cal. 51; Tuska v. O'Brien, 68 N.Y. 446; School Dist. v. Stocker, 42 N.J.L. 115; Blake v. Ohio River R. Co. 47 W.Va. 520, 35 S.E. 953; Bond v. Markstrum, 102 Mich. 11, 60 N.W. 282; Hinsdale County v. Mineral County, 38 Colo. 433, 88 P. 436; Martin v. Roney, 41 Ohio St. 141; Miller v. Union Switch & Signal Co. 59 Hun, 624, 37 N.Y. S. R. 110, 13 N.Y.S. 711; People ex rel. Central P. R. Co. v. San Francisco, 27 Cal. 655; Moore v. Moore, 12 Ky. L. Rep. 324, 14 S.W. 339; Manley v. Park, 62 Kan. 553, 64 P. 28; Stroup v. Pepper, 69 Kan. 241, 76 P. 825; Stocker v. Nemaha County, 72 Neb. 255, 100 N.W. 308; Reich v. Cochran, 151 N.Y. 122, 37 L.R.A. 805, 56 Am. St. Rep. 607, 45 N.E. 367; Pray v. Hegeman, 98 N.Y. 351.

The judgment in the mandamus proceeding was binding upon the relators therein, and also as to all in privity with relators, including the contestant. State ex rel. Davis v. Willis, 19 N.D. 209, 124 N.W. 706; Freeman Judgm. § 178; 23 Cyc. 1406; Giblin v. North Wisconsin Lumber Co. 131 Wis. 261, 120 Am. St. Rep. 1040, 111 N.W. 499; Locke v. Com. 113 Ky. 864, 69 S.W. 763; Cole v. Com. 30 Ky. L. Rep. 385, 98 S.W. 1002; Lyman v. Faris, 53 Iowa 498, 5 N.W. 621; Cannon v. Nelson, 83 Iowa 242, 48 N.W. 1033; Silvers v. Traverse, 82 Iowa 52, 11 L.R.A. 804, 47 N.W. 888; McConkie v. Remley, 119 Iowa 512, 93 N.W. 505; Detroit v. Ellis, 103 Mich. 612, 27 L.R.A. 211, 61 N.W. 886; Elson v. Comstock, 150 Ill. 303, 37 N.E. 207; McClesky v. State, 4 Tex. Civ. App. 322, 23 S.W. 518; Harmon v. Auditor, 123 Ill. 122, 5 Am. St. Rep. 502, 13 N.E. 161; Sabin v. Sherman, 28 Kan. 289; Clark v. Wolf, 29 Iowa 197; Terry v. Waterbury, 35 Conn. 526; State ex rel. Brown v. Chester & L. N. G. R. Co. 13 S.C. 290; Gaskill v. Dudley, 6 Met. 546, 39 Am. Dec. 750; Southern P. R. Co. v. United States, 168 U.S. 1, 48, 42 L.Ed. 355, 376, 18 S.Ct. 18.

It is the duty of the county commissioners to establish polling places. Such duty cannot be coerced or controlled by mandamus. State ex rel. Tompton v. Denoyer, 6 N.D. 586, 72 N.W. 1014; Elvick v. Groves, 17 N.D. 561, 118 N.W. 228.

FISK, J. GOSS, J., did not participate.



This is a contest of an election involving the permanent location of the county seat of Burke county. The question of the permanent location of the county seat for such county was submitted to the electors thereof at the 1910 general election, and according to the abstract of votes prepared by the canvassing board, Bowbells received 783 votes, Lignite 440 votes, and 95 votes divided between other of the candidates for such county seat. The trial in the district court resulted in findings of fact and conclusions of law favorable to the contestees and respondents, and judgment was entered dismissing such contest, from which judgment this appeal is prosecuted.

The canvassing board declined to canvass the returns from certain precincts in the county upon the alleged ground that the election therein was null and void because not held at the voting places designated by the commissioners. It is claimed that if the returns from all the precincts had been received and canvassed, Lignite would have received a majority of all votes cast upon that proposition, and it is contestant's contention that the canvassing board wrongfully and illegally refused to canvass all of such returns. In order to secure what they deemed their legal rights, the friends of Lignite, in due time, instituted mandamus proceedings to coerce the canvass of the omitted precincts. Such proceeding was tried in the district court, resulting in a judgment in defendants' favor, adjudging the election in such precincts void upon the ground that the votes were not cast at the duly established polling places therein. From such judgment an appeal was taken to this court, resulting in an affirmance of the judgment below. State ex rel. Johnson v. Ely, 23 N.D. 619, 137 N.W. 834. The judgment thus entered on the remittitur from this court in such mandamus proceedings is pleaded by respondent in this contest action, and is relied upon as res judicata of all issues tried and decided in that proceeding, and it is respondents' contention here that the following issues were properly raised and adjudicated in such mandamus proceeding:

1. That the election held in the omitted precincts was illegal, null, and void, and of no effect, and that the votes attempted to be cast thereat were illegal, null, and void."

2. "That Bowbells received a majority of the legal votes and was duly elected the county seat of Burke county."

3. "That it would be an abuse of discretion to require the canvassing board to canvass the illegal votes cast in the omitted precincts;" and,

4. "Costs and disbursements to the respondents."

At the trial of this contest action in the district court, contestants offered certain proof in the form of exhibits in support of the allegations in the notice of contest, which exhibits consist of the returns from the precincts omitted by the canvassing board. Such offers were rejected upon the ground "that the matters and things sought to be established by the exhibits are now res judicata and finally decided by the judgment of this court, controlling in this case, which judgment was rendered in the case of State ex rel. Johnson v. Ely, and which judgment has been entered in this court upon the findings of fact and conclusions of law and order therefor, made by his Honor, Judge Templeton, acting by the written request of the then judge of this district."

For a more detailed statement of the facts, see State ex rel Johnson v. Ely, supra. Counsel are agreed that but two questions are involved on this appeal. These questions are stated by appellant as follows: "1. Was the objection to the offered proof that the mandamus action was res judicata of this contest well taken? 2. If not, was the proof offered sufficient to establish prima facie ...

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