First National Bank of Plattsmouth v. Gibson

• Decision Date: 22 June 1905
• Docket Number: 14,199
• Citation: 104 N.W. 174,74 Neb. 232
• Parties: FIRST NATIONAL BANK OF PLATTSMOUTH v. FRANCIS N. GIBSON ET AL. [*]
• Court: Nebraska Supreme Court

104 N.W. 174

74 Neb. 232

FIRST NATIONAL BANK OF PLATTSMOUTH v. FRANCIS N. GIBSON ET AL. ^[*]

No. 14,199

Supreme Court of Nebraska

June 22, 1905

ERROR to the district court for Cass county: PAUL JESSEN, JUDGE. Reversed and dismissed.

REVERSED.

A. N Sullivan, for plaintiff in error.

S. L Geisthardt and Samuel Chapman, contra.

LETTON C. AMES and OLDHAM, CC., concur. SEDGWICK, J., not sitting.

OPINION

LETTON, C.

This action is based upon the same facts narrated in First Nat. Bank v. Gibson, 57 Neb. 246, 77 N.W. 662, and 60 Neb. 767, with the additional fact that, after the former adjudication that the plaintiff's judgment was a lien upon the land in controversy, the premises were sold upon a prior lien by a decree of the United States circuit court for the district of Nebraska, so that the plaintiff had no benefit from its judgment or decree. It seeks by this action to compel Francis N. Gibson to account for the rents and profits of the land during the time he occupied it, and to apply the same to the payment of its judgment. The district court granted the relief prayed to the extent of four years' rents, and held that as to the remainder of the rents and profits the action was barred by the statute of limitations. Plaintiff prosecutes error from this ruling, claiming that the statute had not run, and that it was entitled to all the rents and profits, while the defendant Francis N. Gibson prosecutes a cross-appeal upon the whole record. A number of defenses are set up by the defendant Gibson, for the most part setting up matters adjudicated in the former case. In the view we take of the case, it will only be necessary to consider one of the defenses relied upon. This defense is that the judgment in the former case, which was a creditors' bill to reach the land and subject it to the payment of plaintiff's judgment, is a bar to this action, since it was a former recovery against defendant Francis N. Gibson for everything received by him as a result of the fraud of Carter and Benjamin A. Gibson. The point to be determined is whether or not the cause of action in this case is essentially the same as that in the former case, and whether the relief now sought was obtainable therein.

It is a well-established principle that one is not permitted to split his cause of action; that if he might have had all the relief he seeks in an action he has brought and prosecuted to final judgment, he may not again vex his former adversary with another suit based upon the same wrong. It is also a rule, which we have applied against the appellant herein as to most of the defenses he has set up in his answer, that (to quote the plaintiff in error's brief) "a judgment is conclusive not only as to the subject matter in suit, but as to all other suits, which, though concerning other subject matter, involve the same issues." In Henderson v. Henderson, 3 Hare (Eng.) *100, *115, the vice chancellor said:

"In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at that time. Beloit v. Morgan, 7 Wall. (U. S.) 619, 19 L.Ed. 205; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195; 2 Black, Judgments (2d ed.), sec 609; Slater v. Skirving, 51 Neb. 108, 70 N.W. 493.

Applying these rules to the present action, what is the situation? The plaintiff by the decree in the creditors' bill established conclusively as against the appellant here the fact that he was not a bona fide purchaser of the land, and that it was subject to the lien of its judgment. The matters the appellant sets up in his answer on account of which he seeks to reopen or go behind that adjudication therefore, cannot be considered, and, as...