Gerrish & Brewster v. Pratt & Bunker

• Citation: 6 Minn. 14
• Parties: GERRISH & BREWSTER vs. PRATT & BUNKER.
• Decision Date: 01 January 1861
• Court: Minnesota Supreme Court

Page 14

6 Minn. 14

GERRISH & BREWSTER vs. PRATT & BUNKER.

Supreme Court of Minnesota.

Appeal from the judgment of the district court, Ramsey County.

SMITH & GILMAN, for appellants.

COX & BRYANT, for respondents.

ATWATER, J.

The plaintiffs, Gerrish & Brewster, brought their action on a replevin bond, against the defendants, which had been executed by them in favor of the plaintiffs. The defendants, among other things, plead a former judgment in favor of the defendants, between the same parties and for the same cause of action, in the district court in and for Nicollet County. The plaintiffs replied, alleging that in said action the merits were not litigated, but that the said case was disposed of, upon the ground that the complaint did not state facts sufficient, in connection with said bond, to constitute a cause of action. This issue was found in favor of the plaintiffs, by the judge who tried the cause (a jury having been waived), but judgment was rendered thereon in favor of the defendants. The plaintiffs appeal to this court. The only question here presented is, whether the above plea, being found true, constitutes a good defense. That a judgment in a former suit between the same parties, and upon the same matters, constitutes a good plea in bar is too well settled to need argument or the citation of authorities. The plaintiffs here contend, that the matters in issue in the present suit were not litigated in the former suit. With reference to that former suit, the court below has found that the judgment therein "was rendered for costs only, and not on the merits involved in said action; that said judgment was rendered on a motion for judgment on the pleadings by said defendants, and without the introduction of any testimony or the determination of any issue, save only that said plaintiffs' complaint did not contain a cause of action." What the defect in the pleadings was, does not specifically appear. If the court below adjudicated upon the bond itself, and held it void for any reason, that would perhaps form a bar to this action, while the judgment remained unreversed. But the finding of the court below precludes the supposition that such was the case, as it is expressly stated that the judgment was not rendered on the merits involved in said action. The defect, therefore, it is reasonable to presume, must have consisted in the insufficiency or informality in the statement of the cause of action. If the plaintiffs in the present suit have stated a good cause of action, it is difficult to see how it can be barred by the proceedings in the former suit, for it appears from the finding of the court, that not only has it not been litigated, but has not even been presented in court, as the former judgment was for costs only, on the ground that the complaint did not state any cause of action. It is true that the suit was between the same parties and upon the same subject matter, but the matter has not been litigated, nor even presented in a shape that it could be litigated, as the plaintiffs failed to state a legal claim against the defendants. Where the cause has gone off upon some defect, which precluded an inquiry into the merits, the judgment is usually no bar to a second action. 4 C. & H., Notes to Phil. Ev., 9, note 12. In Black., W., 827, 3 Wils., 304, the principle is conceded, that if the real merits of the second action have not been decided in the first, the prior judgment is no bar. I do not think the plaintiffs here are in any worse position in regard to this former suit, than they would have been, had the defendants demurred to the declaration; and in 1 Chitty Pl., 227, it is stated that "if the plaintiff mistake his cause of action, and the defendant demur, the plaintiff is certainly not precluded from commencing a fresh action, and may reply to a plea in bar of the judgment on demurrer, that the same was not obtained on the merits;" and see authorities there cited, and Knox v. Waldoborough, 5 Me., 185, in which it is held that "a decision of the court in favor of the defendant, upon an agreed statement of fact, and a nonsuit of the plaintiff entered, and judgment thereon for the defendant for his costs, pursuant to such agreement, constitute no bar to a subsequent action for the same cause." And in the text of Chitty above cited, it is stated that "if the plaintiff demur to the plea in bar upon the merits, and such plea be sufficient, in that case also no second action can be commenced; but if the plea were not sufficient, and the judgment against the plaintiff was on the defect in his declaration, the former judgment against him will be no bar." And in 1 Greenl. Ev., §§ 529-30, it is stated that "it is only where the point in issue has been determined, that the judgment is a bar. If the suit is discontinued, or the plaintiff becomes nonsuit, or for any other cause, there has been no judgment of the court upon the matter in issue, the proceedings are not conclusive. So, also, in order to constitute the former judgment a complete bar, it must appear to have been a decision upon the merits; but if the trial went off on a technical defect, &c., the judgment will be no bar to a future action." And analogous to the above is the practice in criminal cases, in which if the former acquittal was for want of substance in setting forth the offense, it is no bar to a second prosecution. 3 Greenl. Ev., § 35. And see Hughes v. Blake, 1 Mason, 515; Snider v. Croy, 2 Johns., 227; Seddon v. Tutop, 6 Durnf. & E., 607; 4 Durnf. & E., 147, Morgan v. Bliss., 2 Mass., 111; Bridge v. Sumner, 1 Pick., 371; 4 Gill & J., 345; Stevens v. Dunbar, 1 Blackf 56; Kendal v. Talbot, 1 A. K. Mar., 321; Hamel v. Lawrence, id., 330; 1 Mod., 307; Phillips v. Berick, 16 Johns., 137; Wheeler v. Van Houten, 12 Johns.,...