Fair v. Dickerson

• Decision Date: 07 November 1932
• Docket Number: 30213
• Citation: 164 Miss. 432,144 So. 238
• Court: Mississippi Supreme Court
• Parties: FAIR et al. v. DICKERSON

144 So. 238

164 Miss. 432

FAIR et al. v. DICKERSON

No. 30213

Supreme Court of Mississippi

November 7, 1932

Division B

1 JUDGMENT.

When right to possession is dependent on issue of title, and turns on such issue judgment in replevin is conclusive of title.

2 JUDGMENT.

Former judgment on merits, between same parties, in court of competent jurisdiction is conclusive as to any issue litigated and determined, however erroneous, which issue is essential to second action, though brought on different cause of action.

3 JUDGMENT. Judgment for defendants in replevin for part of total timber cut by defendants held res judicata as to title of total timber cut, in subsequent suit to recover value of all timber removed.

Judgment was res judicata, since the six thousand feet sued for in replevin was a part of the fifty thousand feet, or the total timber cut by defendants, title to timber in subsequent suit for value of all timber removed was predicated on the same basis as the claim in the replevin suit, suit was between the same parties in a court of competent jurisdiction, involving the same points of law on the same facts, and there being no showing that timber involved in two suits differed in character or that replevin suit was determined on procedural questions.

HON. T. P. GUYTON, Chancellor.

APPEAL from chancery court of Winston county, HON. T. P. GUYTON, Chancellor.

Suit by W. M. Dickerson against D. L. Fair and others. From a decree for plaintiff, defendants appeal. Reversed and rendered.

Reversed and decree here for appellants.

E. M. Livingston, of Louisville, and Baskin, Wilbourn & Miller, of Meridian, for appellants.

Although a judgment may be conclusive evidence on any point formerly litigated and decided between the same parties, yet it is not pleaded in bar of a second action, unless it is founded on the same identical or substantially identical cause of action.

34 C. J. 802, section 1225.

A former judgment for plaintiff in one of a series of actions for money due by installments or other successive causes of action, although not a bar to a subsequent suit, will be final and conclusive evidence as to all points and questions actually or necessarily litigated and determined by it, such as the validity of the contract sued on, and determines plaintiff's right to recover in a subsequent action on a like state of facts.

34 C. J., page 844, section 1252.

Where judgment is recovered for an installment of rent due under a lease, all questions concerning the validity or terms of the lease, the amount of the rental, the occupancy of the premises and the like, which were actually litigated or necessarily involved in the adjudication, are conclusively settled in a subsequent action for another installment of rent under the same lease.

34 C. J., page 845, section 1252.

Adjudication of a defense of failure of consideration for three notes in a suit on one of them precludes that defense in an action on the other notes.

34 C. J. section 846; Gross v. Todd et al., 47 So. 801; Davis v. Hart, 66 Miss. 642, 6 So. 318; Lumber Company v. Bushtel, 101 U.S. 638, 26 L.Ed. 1072; Milne v. Deem, 121 U.S. 534, 30 L.Ed. 980; Burrell v. Tripp, 124 U.S. 231, 31 L.Ed. 412; Johnson v. Wharton, 152 U.S. 258, 38 L.Ed. 433.

When second suit is between the same parties or their privies and upon the same cause of action as a former suit, the judgment or decree in the first is conclusive upon all the parties and their privies in the second suit, not only as to every question and issue which was, but also upon every question and issue, claim or defense, which might have been presented in a first suit; but where the second suit is upon a different cause of action, but between the same parties as the first, or their privies, the judgment or decree in the first operates as an estoppel in the second only as to those points or questions which were actually litigated and determined in the first suit.

Miller v. Belvy Oil Company, 248 F. 83; Basick Manufacturing Company v. Larkin, 19 F. 939.

The general principle is that a question of fact, or of law, distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense in a suit or action between parties sui juris, is conclusively settled by the final judgment or decree therein, so that it cannot be further litigated in a subsequent suit between the same parties, or their privies, whether the second suit be for the same or a different cause of action.

Oklahoma v. Texas, 256 U.S. 70, 65 L.Ed. 831.

If a second action is upon the same cause as a former one, the judgment or decree on the merits in the first case is an absolute bar to the subsequent action between the same parties, or those in privity with them not only in respect to every matter which is actually offered or received to sustain the demand, but also to every ground of recovery which might have been presented.

If a second action is upon a different cause from a former one the prior judgment or decree operates as an estoppel only as to matters actually in issue, or points controverted, upon the determination of which the judgment or decree was rendered.

Baltimore Steamship Company v. Phillips, 274 U.S. 316, 71 L.Ed. 1096; 232 F. 318, 146 C. C. A. 366 and citations; Southern Pacific Case, 168 U.S. 1, 42 L.Ed. 355; Postal Telegraph v. Newport, 247 U.S. 464, 62 L.Ed. 1215; St. Louis v. Wabash, 54 L.Ed. 752, 217 U.S. 247; Union Pacific v. City, 222 U.S. 257, 56 L.Ed. 180; Town v. Walk, 9 F. 590; Evans v. Ely, 30 F. 912; Bates v. Strickland, 139 Miss. 636, 103 So. 432; Harvison v. Turner, 116 Miss. 550, 77 So. 528.

When the cause of action in the two suits is different, only those things are concluded by the first judgment which were actually in issue in the suit in which it was rendered.

Hardy v. O'Pry, 102 Miss. 197, 59 So. 73; Vinson v. Colonial, etc., 116 Miss. 59, 76 So. 827; Dean et al. v. Board of Supervisors, 135 Miss. 268, 99 So. 563; Stewart v. Stebbins, 30 Miss. 66; Scully v. M. Lowenstein & Brother, 56 Miss. 652; Adams v. Railway Company, 77 Miss. 194.

R. W. Boydston and Rodgers & Prisock, all of Louisville, for appellee.

A replevin suit is a possessory action for the thing, or in the alternative for the value, and the court recognized at the time this case was tried in the chancery court that the complainant therein could not have replevied trees which had not been severed from the land at the time because they were realty, and therefore, the judgment could only go to the six thousand feet which was replevied and that said judgment was not an estoppel for a suit brought by the appellee to recover trees which were later cut.

As to the question of res judicata, this court has held that, before this plea can prevail four things must be shown (1) Indentity in the thing sued for; (2) Identity in the cause of action; (3) Identity to persons and parties to the action; and (4) Identity of quality in the person for or against whom the claim is made.

Jones v. George, 89 So. 231.

In order that the judgment rendered in the first suit may constitute a bar to the second, the cause of action must be the same in both suits--and when the cause of action in the two suits is different only those things are concluded by the first judgment which were actually in issue in the suit in which it was rendered.

Hardy v. O'Pry, 59 So. 73; Sculley v. Lowenstein, 56 Miss. 652.

The weight of authority is that, where the second action, although by the same parties, is on a different cause of action, the judgment is not conclusive on all matters which might have been litigated in the former action, but only as to such points or questions which were actually in issue and adjudicated therein.

23 Cyc., page 1297.

It is immaterial that the former action is different if the cause be the same, the judgment is conclusive as a judgment in trover, is a bar to an action of assumpsit for the value of the same cause.

Artrell v. Lusk, 73 So. 855; Williams v. Luckett, 26 So. 796; Agnew v. McElroy, 10 S. & M. 552.

Where the state brought suit and recovered judgment for timber cut--it is not estopped to sue for the cutting of timber subsequently to such judgment.

Robertson v. Weston Lumber Company, 87 So. 121.

When a writ of replevin was issued for certain goods and recovered; later the plaintiff sued for the remainder of the property not replevied. Under the circumstances the plaintiff is not estopped from bringing suit in trover for such property as was not taken under the writ of replevin.

Read Murdock & Company v. Ferris, 112 Mich. 693; Farwell v. Myers, 64 Mich. 234.

If one enters upon the land of another and cuts trees thereon, the owner of the land and of the trees has an election at common law to sue in trover and conversion and trespass de bonis asportatis for the value of the trees, or in trespass quare causum fregit for injury to the freeholder, the land, or the possession of it. He may also sue in replevin for the particular logs or timber removed.

17 R. C. L., page 1106.

OPINION

Griffith, J.

On March 20, 1923, Mrs. S.D. White sold and conveyed to the Mitchell Lumber Company all the pine timber on a described forty acres of land in Winston county, together with a...