Fullerton v. Pool

• Decision Date: 19 December 1899
• Citation: 59 P. 431,9 Wyo. 9
• Parties: FULLERTON, ET AL., v. POOL
• Court: Wyoming Supreme Court

59 P. 431

9 Wyo. 9

FULLERTON, ET AL., v. POOL

Supreme Court of Wyoming

December 19, 1899

ERROR to the District Court, Johnson County, HON. JOSEPH L. STOTTS Judge.

Suit upon an undertaking given to secure the operation of a temporary restraining order. Judgment was for plaintiff, and defendant brought error. The facts are stated in the opinion.

Affirmed.

Alvin Bennett, for plaintiffs in error.

The reply was insufficient as a plea of former adjudication. (Crum v. Rea (Ind.), 42 N. E., 1033; Kitson v Peoples, 23 id., 1020; Sparger v. Romine, 57 N W., 523; Van Fleet on Former Adj., 1329; Potter v. Baker, 19 N. H., 166; Solly v. Clayton, 12 Colo. 30; Trustees v. Massengill, 5 S. W., 719; Ency. Pl. & Pr., Vol. 9, 624; Greenwood v. Warren, 23 So. 686; Montrose, v. Wannamaker, 11 N. Y. Sup., 106; Glaser v. Meyrovitz, 24 So. 314.)

A judgment upon demurrer for defendant does not necessarily establish the truth of all the defenses where several are pleaded. (Witch v. Phelps, (Neb.), 20 N. W., 840; Ry. Co. v. Leathe, 84 F. 103; Russel v. Place, 94 U.S. 606.) Nothing is determined by the prior action unless it appears affirmatively by legal evidence that the same matter was then determined. (Smith v. Inhabitants, (Me.) 13 A. 890; Young v. Pritchard, 75 Me. , 518; Hill v. Morse, 61 id., 543; Arnold v. Arnold, 17 Pick., 8; Scott v. Wagner (Kan.), 42 P. 741.) The two actions were not identical. See 94 U.S. 351. The question of the ownership of the lateral was an immaterial issue in the former action.

W. S. Metz, and Clark & Breckons, for defendants in error.

Matters which go to the merits of an injunction suit cannot be relitigated in an action on the bond. (2 High on Inj., 1652, 1641, 1624; Darling v. Pollock, 18 Cal. 625.) Ajudgment on demurrer is conclusive unless reversed on appeal. (Luthrel v. Reynolds, 37 S. W., 1051; Black on Judg., 625, 707; Bissell v. Township, 8 S.Ct. R., 495.) The matters set up by the defendants and proposed to be testified to, were fully pleaded in the injunction suit, and were fully determined therein, and the judgment was res-judicata. Black on Judg., 500, 503, 616.

POTTER, CHIEF JUSTICE. CORN, J., and KNIGHT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This action was instituted in the district court by Daniel J. Pool, the defendant in error, upon an injunction bond which had been executed by plaintiffs in error in a cause wherein Robert W. Fullerton was plaintiff and Daniel J. Pool was defendant. The bond was given in the penal sum of three hundred and fifty dollars, and was conditioned as follows: --

"That whereas, the above-named Robert W. Fullerton has commenced an action in the district court in the said county of Johnson, against the above-named Daniel J. Pool, and obtained an injunction order from the judge of said court restraining the said defendant, Daniel J. Pool, from tapping the ditch or interfering in any manner with, or taking water from, the Babcock, Brown & Fullerton Ditch, in said county of Johnson, until the further order of the court. Now, the conditions of this obligation are such that if the said defendant, Daniel J. Pool, shall be saved harmless from all damages he may sustain, if it be finally decided that said injunction ought not to be granted, then this obligation to be null and void, otherwise to remain in full force and effect."

The petition alleges the commencement of the action wherein the bond was given, and that the object of said action was to enjoin said Pool from using or taking water from the ditch mentioned in the bond, and from taking water from Piney Creek. It is also averred that a temporary restraining order was granted and thereby said Pool was prevented from using water for the purpose of irrigating his lands until the final hearing of the case in the district court November 12, 1897. The date of the injunction was June 21, 1897. The following further allegations in substance are contained in the petition. That at the time of the issuance of the restraining order the plaintiff (Pool) was engaged in farming and stock raising on his said lands, and had large crops of wheat, oats, hay, and vegetables then growing thereon, which he was engaged in irrigating from the said Babcock, Brown & Fullerton Ditch; that said crops required irrigating for their successful cultivation; and, owing to the said injunction, the plaintiff was wholly deprived of the use of the water from said ditch and from all sources for that purpose; in consequence whereof, said crops were destroyed and burned up by drought to the damage of plaintiff in a sum greater than the penalty named in the bond; that at the final hearing of the suit wherein the bond was given, the injunction was dissolved, and it was decided that said restraining order and injunction ought not to have been granted. A breach of the bond is averred, and the prayer is for judgment for $ 350.00 and interest from November 30, 1897.

A joint answer of all the defendants (plaintiffs in error here) was filed, admitting the bringing of the injunction suit and the execution of the bond; and alleging for a separate defense that at the time of the commencement of the injunction suit said Fullerton was and continued to be the owner of a certain interest in the "Babcock, Brown & Fullerton Ditch, taking its water from the Piney and tributaries through the Piney Divide;" and that said Pool had been continually tapping the said ditch at a point above said Fullerton's lands, and diverting the water from the ditch without the latter's consent, thereby depriving him of sufficient water to irrigate his crops; and the injunction suit was brought in good faith to restrain said Pool from interfering with said water and preventing the same from running upon the land of said Fullerton; that on or about November 12, 1897, upon the demurrer of the plaintiff in the injunction suit to the defendant's answer, the temporary restraining order which had been previously issued was dissolved, and the action dismissed; but it was denied that there was a final judgment rendered determining the rights of the said Fullerton in any way to said water or irrigating ditch. It was denied that there had occurred any breach of the bond; a denial was also attempted of the allegation that it had been decided that the injunction had been wrongfully granted; but the answer is so framed as to make such denial apply to the bond rather than the injunction, undoubtedly through an unintentional misuse of language.

As another separate defense, the damages alleged to have been sustained by the plaintiff was denied.

A reply was filed which with much particularity recites the allegations of the pleadings in the injunction suit, and alleges that the defense, attempted to be interposed by the averments respecting Fullerton's water right, had been adjudicated in the former suit, adverse to his claim as against Pool's right to divert the water to the extent claimed by him.

1. The defendants (plaintiffs in error) filed a motion for judgment upon the pleadings, on the ground that there was no denial of the new matter set up in the answer, and "that there is no defense set up by said plaintiff to the new matter alleged in the said defendant's answer." That motion was overruled, and the ruling is assigned as error.

It is clear that it was not error. Even if it had been a fact that Pool, the obligee in the bond, had no right to take any water from the ditch, and if such fact would have constituted a defense to the suit...