Enderlin State Bank v. Jennings

• Decision Date: 14 August 1894
• Court: North Dakota Supreme Court

59 N.W. 1058

4 N.D. 228

ENDERLIN STATE BANK v. REUBEN P. JENNINGS

Supreme Court of North Dakota

August 14, 1894

Appeal from District Court, Barnes County; Rose, J.

Action in attachment by the Enderlin State Bank against Reuben P Jennings. From an order sustaining a motion to vacate the warrant of attachment, plaintiff appeals.

Reversed.

Reversed.

Ed Pierce and Edward Engerud, for appellant.

The defendant voluntarily appeared in the District Court of Ransom County and sought the adjudication of the court upon plaintiffs right to the writ of attachment. The attachment was sustained and this adjudication was a bar to any further proceedings. 1 Herman on Estoppel, 472; Austin v Walker, 61 Ia. 158, 16 N.W. 65; Mayer v. Wick, 15 Ohio St. 548; Rogers v. Hoenig, 46 Wis. 361; Dwight v. St. John, 25 N.Y. 203; Grier v. Jones, 54 Ga. 154; Pierce v. Kneeland, 9 Wis. 23; Corwith v. Bank, 11 Wis. 430; Hill v. Hoover, 9 Wis. 15; Bank v. Uphan, 14 Wis. 596; Cothren v. Connaughton, 24 Wis. 134; Kabe v. Eagle, 25 Wis. 108; Peo. v. Center, 61 Cal. 191; Gregory v. Haines, 21 Cal. 443; McCullough v. Clark, 41 Cal. 298; Langdon v. Raeford, 20 Ala. 532; Gavin v. Graydon, 41 Ind. 559; Sanderson v. Daily, 83 N.C. 67; Mitchell v. Allen, 12 Wend. 290; Commissioners v. McIntosh, 30 Kan. 234.

Ball & Watson, G. K. Andrus and R. J. Mitchell, for respondent.

The courts of the two states from which our practice has been so extensively borrowed, New York and California, hold that motions may be renewed upon the same grounds upon which they were originally made. That while it is better practice first to obtain leave to renew, yet this is not indispensable. Harris v. Brown, 93 N.Y. 390; Riggs v. Pursell, 74 N.Y. 370; Belmont v. R. R., 52 Barb. 637; White v. Monroe, 33 Barb. 650. It is a discretionary matter and the court will be presumed to have exercised its discretion properly. Hitchcock v. McElrath, 69 Cal. 634; Kenney v. Kelleber, 63 Cal. 442; Bowers v. Cherokee Bob, 46 Cal. 280.

OPINION

CORLISS, J.

The order appealed from vacated a warrant of attachment. The order was made by the District Court of the Fifth Judicial District. The action was originally brought in the Fourth Judicial District. While it was there pending a motion was made before the District Court of that District to set aside the warrant of attachment which had been issued in the action. The ground upon which this warrant was issued was that defendant had assigned and disposed of his property with intent to hinder, delay, and defraud his creditors. After a final hearing the court denied the motion, and one of the grounds of the court's decision in denying the motion was that defendant had disposed of his property with intent to hinder, delay, and defraud his creditors. From this order no appeal was taken. Subsequently, the parties stipulated to change the place of trial to Barnes County, in the Fifth Judicial District. Upon this stipulation an order was made changing the place of trial to Barnes County, and thereafter another motion was made to set aside the same attachment. This motion was granted. Upon the hearing of it, plaintiff relied upon the previous order made by the court of the Fourth Judicial District, denying such motion, as a bar to the second motion. No counter affidavits on the merits of the motion were filed, but plaintiff relied solely upon the point that the question of vacating the attachment was res judicata. Upon the second motion the affidavits used on behalf of defendant contained no new facts, nor was there any claim made on such motion that any facts existed, different from those which were urged on behalf of defendant on the previous motion as a reason for vacating the attachment. Not a single reason is disclosed, anywhere in the record, why another motion should have been made. There was no pretense that defendant would be able to offer any different proof in rebuttal, or that the case would, in any respect whatever, stand upon facts different from those already presented to the District Court of the Fourth Judicial District, and on which that court had decided that the attachment should be sustained.

The respondent urges that it is always discretionary with a court to hear the same motion on the same papers and evidence, and that such a discretion the appellate tribunal will not interfere with. The rule certainly at one time did prevail that the doctrine of res judicata did not apply to decisions upon motions. That rule has by no means been abrograted, in its full scope; but changes in procedure have wrought corresponding changes in this doctrine, and have taken certain motions out of the general rule. The reasons for the doctrine were that motions did not receive such grave consideration as regular trials of issues of fact, and that there was no right of review in a higher tribunal. Simson v. Hart, 14 Johns. 75. Neither of these reasons apply to many motions, under our systems of procedure. We will confine ourselves, however, to motions of the character of the one which culminated in the order appealed from. Whether an attachment shall stand or fall is a question entirely distinct from the merits of the action in which it was granted. That question cannot be tried in this state in connection with the trial of the case itself. It must be settled in a separate proceeding. That proceeding is a motion to discharge the attachment. It is in this way only that the court can ever decide whether an attachment shall be sustained or set aside. It would seem, on principle, that where there had been a full and fair hearing on this question, and a decision made, that decision should forever settle that question between the parties, in the absence of some evidence to show that by reason of surprise, excusable neglect, or because of newly discovered evidence, it would be just to reopen the matter and grant a rehearing. That the defendant in this case had such a full and fair hearing on the first motion is apparent from the fact that he was allowed ample time after plaintiff's opposing affidavits were filed in which to prepare rebutting affidavits. Indeed, this is the statutory right of the defendant in all such cases. He is always allowed to sustain the motion by affidavits or other proof in rebuttal of the affidavits or other proof offered and submitted on the part of the plaintiff to oppose the motion. Comp. Laws, § 5011. There is no good reason why a defendant who has a right to so full a hearing on a motion should be allowed, when he is defeated, to renew the same motion, on the same facts, without presenting any proof to entitle him to a rehearing, unless the same judge grants the rehearing to correct some error in his former decision. Certainly, no reason for granting him such a privilege can be adduced, except for the purpose stated, when he has in fact been fully heard in support of his original motion. If any error of law has been made, he can have it reviewed by appeal. Laws 1891, Ch. 120, § 24. With respect to the facts decided, there is no reason, so far as the right to the relief sought for by the motion is concerned, why they should not be set at rest forever by the decision upon such a hearing, the same as facts are settled by the judgment of a court when such facts are found by a jury or the court upon the trial of the issues in an action. Of course, the decision on the motion to dissolve an attachment might not, in all cases, affect the decision of the same question of fact when involved in another action. But the question is res judicata in the sense that no other motion can be made on the same facts to accomplish the same purpose for which the first one was made; with the possible exception that the same judge may reopen the matter to correct any mistake made by him in deciding the motion. There is a class of cases which hold that the matters of fact so established are conclusive against the defeated party in subsequent litigation of a different character. But these will be found to be cases where a person, after being defeated in his effort to accomplish his purpose by motion, --as to set aside a judgment for want of service of process, -- resorts to an action to secure the same result. The general rule may be stated in the following terms: Where there is an opportunity for a full and fair hearing on a motion, and a right of review in an appellate tribunal, the decision of that motion is res judicata whenever, on the same facts, the defeated party, by motion or otherwise, seeks to secure the object for which he made the motion, subject to the possible exception that, where the same judge entertains a new motion on the the same facts, it will be presumed that his object was to rehear the case to correct any error he may have made. Under such a doctrine the former order would not be a bar to a second motion on the same facts, when heard before the same judge. See, on the general question of res judicata with respect to decisions on motions, the following cases: Dwight v. St. John, 25 N.Y. 203; Grier v. Jones, 54 Ga. 154; Weber v. Tschetter, 1 S.D. 205, 46 N.W. 201; Commissioners v. McIntosh, 30 Kan. 234, 1 P. 572; Mabry v. Henry, 83 N.C. 298; Burner v. Hevener, 34 W.Va. 774, 12 S.E. 861; Kabe v. The Eagle, 25 Wis. 108; Cothren v. Connaughton, 24 Wis. 134; Pierce v. Kneeland, 9 Wis. 23; Austin v. Walker, 61 Iowa 158, 16 N.W. 65; Sanderson v. Daily, 83 N.C. 67; Kaufman v. Schneider, 35 Ill.App. 256, 262; Hawk v. Evans, 76 Iowa 593, 41 N.W. 368; Frauenthal's Appeal, 100 Pa. 290; Bank v. Upman, 14 Wis. 596; Claggett v. Simes, 25 N.H. 402; Spitley v. Frost, 15 F. 299; Trescott v. Lewis, 12 La.Ann. 197; Bank v. Hansee, 15 Abb. N. C. 488. See, also, 1 Herm. Estop. § 472; Freem. Judgm. § § 325, 326; 2 Black, Judgm. § § 691, 692.

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