Foreman v. Martin
| Decision Date | 31 March 1975 |
| Docket Number | 73--359,Nos. 73--358,s. 73--358 |
| Citation | 325 N.E.2d 378,26 Ill.App.3d 1028 |
| Parties | Howard FOREMAN, Plaintiff-Appellant, v. Joseph MARTIN and Bank of Waukegan, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Richard J. Smith, Sullivan & Smith, Waukegan, for plaintiff-appellant.
Charles L. Whyte and Wm. G. Rosing, Griesheimer, Thompson & Drew, Waukegan, for defendants-appellees.
This is a consolidated appeal from judgments which dismissed plaintiff's complaints on the ground that they were barred under the doctrine of res judicata by reason of the litigation which resulted in this court's opinion and mandate in Foreman v. Joseph Martin v. Bank of Waukegan (1972), 6 Ill.App.3d 599, 286 N.E.2d 80.
In our previous opinion we held that the bank had no right to stop payment on a cashier's check issued by it and made out to a named payee. We therefore reversed an order which had enjoined the bank from paying Joseph Martin and remanded the cause with directions to the trial court to order the bank to make payment. In our opinion we stated that we did not consider other points raised in the briefs.
Upon remand Foreman filed an amended complaint in the original injunction suit. In addition, Foreman filed a new action which was also dismissed. Both complaints pled conversion of the check, prayed that the court declare that Martin had no interest in the $8,000 proceeds of the cashier's check and sought damages. The trial court dismissed both complaints and the separate notices of appeal which have been filed by Foreman have been consolidated into this appeal.
Foreman contends that since he originally pursued the remedy of injunction, which we held to be improper, he is not precluded from renewing litigation on the same facts but seeking a remedy of damages.
The defendant Bank of Waukegan responds that this is a single cause of action which was adjudicated in previous litigation between the same parties and may not be pursued on a new theory which could have been availed of in the prior litigation. (The defendant Joseph Martin has not appeared nor has he filed a brief.)
Under the doctrine of res judicata if a prior judgment is raised as a complete bar against a second action both as to matters actually adjudicated in the first action and as to those matters which could have been raised therein there must be, as between the actions, an identity of parties, of subject matter and of the cause of action. (Smith v. Bishop (1962), 26 Ill.2d 434, 436, 437, 187 N.E.2d 217; Hinkle v. Tri-State Transit, Inc. (1974), 21 Ill.App.3d 134, 137, 315 N.E.2d 289.) Where the parties to a new action are the same as the parties to a prior action and the same subject matter is the basis for the new action but the claim or cause of action is different, the prior decision operates as an estoppel only as to those matters in issue or points controverted and is only conclusive as to those questions actually raised and determined therein. Smith v. Bishop, supra; Hinkle v. Tri-State Transit, Inc., supra.
A judgment is on the merits in the sense that it may be pleaded in bar of a subsequent action when it amounts to a decision as to the respective rights and disabilities of the parties based on the ultimate facts or state of facts disclosed by the pleadings or evidence, or both, and on which the right of recovery depends, irrespective of formal, technical or dilatory objections or contentions. Fraley v. Boyd (1967), 83 Ill.App.2d 98, 102, 226 N.E.2d 81. See also Orminski v. Hyland Electrical Supply Co. (1945), 326 Ill.App. 392, 396--398, 62 N.E.2d 14.
There is not necessarily an identification of causes of action, however, if a plaintiff seeks a form of remedy which turns out to be unavailable to him. In that case the adverse judgment is not a final one on the merits and the party is not precluded from subsequently maintaining an action in which he seeks an available remedy. See Gudgel v. St. Louis Fire and Marine Ins. Co. (1971), 1 Ill.App.3d 765, 771, 274 N.E.2d 597.
Our ruling in the previous appeal that as a matter of law the bank could not withhold payment to Martin on his...
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...if it is rendered because the plaintiff "seeks a form of remedy which turns out to be unavailable to him." Foreman v. Martin, 26 Ill.App.3d 1028, 325 N.E.2d 378, 379 (2d Dist.1975); see also Rotogravure Service, Inc. v. R.W. Borrowdale Co., 77 Ill.App.3d 518, 32 Ill.Dec. 762, 395 N.E.2d 114......
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