Haney v. Neace-Stark Co.

• Decision Date: 23 October 1923
• Citation: 219 P. 190,109 Or. 93
• Parties: HANEY ET AL. v. NEACE-STARK CO. ET AL.
• Court: Oregon Supreme Court

219 P. 190

109 Or. 93

HANEY ET AL. v. NEACE-STARK CO. ET AL.

Supreme Court of Oregon

October 23, 1923

In banc.

Appeal from Circuit Court, Baker County; Gustav Anderson, Judge.

On petition for rehearing. Petition denied.

For former opinion see 216 P. 757.

J. J. Heilner and Clifford & Correll, all of Baker for petitioner.

McColloch & McColloch, of Baker, contra.

BROWN J.

The Neace-Stark Company, through its attorneys, has filed a petition for a rehearing. For a full statement of the facts and issues involved herein, see Haney v Neace-Stark Co., 216 P. 757.

The court expressly set forth in finding of fact No. 18--

"That the extent of appropriations and application and use of water * * * cannot be determined in this proceeding from the pleadings and evidence submitted."

And that--

"For like reasons the respective rights and priorities * * * cannot be determined or governed by any decree in this proceeding."

In its conclusions of law, paragraph 1, the court found that--

"The relative rights (to the waters) and extent thereof as between said parties" were not "determined and not subject to determination from the pleadings and evidence in this proceeding."

The decree reads:

"And the court, having made and filed its findings of fact and conclusions of law, it is now, by virtue of the law and the findings aforesaid, considered, ordered, and decreed that this suit be, and the same hereby is, dismissed and that neither party recovers costs or disbursements of the other."

The petition presents the question of res adjudicata.

"Former adjudication is, when pleaded, a plea in bar of the further prosecution of a suit, on the ground that the same subject-matter has been already litigated between the same parties, or their privies, and a judgment rendered on the merits of the case." 9 Encyc. Plead. and Prac. pp 611, 612.

To be effectual as a bar to further litigation, the judgment or decree, within the provisions of sections 411 and 756, Oregon Laws, must have been rendered on the merits of the cause. Toy v. Gong, 87 Or. 454, 170 P. 936; Hoover v. King, 43 Or. 281, 72 P. 880, 65 L. R. A 790, 98 Am. St. Rep. 754.

"A decree is the judgment or sentence of a court of equity. It is pronounced on the hearing of issues and determines the rights of the parties to the suit." 16 Cyc. 471.

In order to state a good cause of defense, the defendant averred that, in the former suit, the decree was rendered upon the merits of the case, and, in order to sustain its plea of former adjudication, made the following offer of evidence:

"Judge Clifford: Now, * * * in support of our plea of former adjudication, I desire at this time to offer in evidence the judgment roll of the court in the case of Herman C. Haney * * * v. Neace-Stark Company, * * * and particularly the complaint in the case, the answer, * * * also the findings of fact and conclusions of law found by this court, the decree of this court, and also the opinion of this court."

The offer was received. But the record discloses the fact that the former case was not decided upon its merits.

When is a case decided upon its merits? A common definition of "merits" is:

"Matter of substance, in law, as distinguished from matter of form or technicality." Rahn, Adm'r, v. Gunnison, 12 Wis. 588; cited in Black's Law Dictionary; 2 Pope, Legal Definitions; Cyc. Law Dictionary, Adjudicated Words and Phrases, Winfield; 5 Words and Phrases, First Series, p. 4493.

"A 'defense upon the merits' is one which depends upon the inherent justice of the defendant's contention, as shown by the substantial facts of the case, as distinguished from one which rests upon technical objections or some collateral matter. Thus, there may be a good defense growing out of an error in the plaintiff's pleadings, but there is not a defense upon the merits unless the real nature of the transaction in controversy shows the defendant to be in the right." Black's Law Dictionary.

"As a technical legal term, 'merits' has been defined as matter of substance, in law, as distinguished from matters of form, and as the real or substantial grounds of action or defense, in contradistinction to some technical or collateral matter raised in the course of the suit. The judgment is upon the merits when it amounts to a declaration of the law as to the respective rights and duties of the parties, based on the ultimate facts or state of facts disclosed by the pleadings, and evidence upon which the right of recovery depends, irrespective of formal, technical, or dilatory objections or contentions." 5 Words and Phrases, First Series, 4494.

" 'Merit:' The intrinsic rights and wrongs of a case as determined by matters of substance, in distinction from matters of form; the strict legal rights of the parties, as distinguished from those depending upon questions of practice, jurisdiction, competence, discretion, favor, or the like." Webster's New International Dictionary.

The defendant Neace-Stark Company takes exception to the following excerpt from the former opinion, reading:

"But, regardless of the deficiency in the pleading, the pertinent fact is that the court refused to decide a specific issue upon its merits; and, hence, there being no decision, there was no adjudication as to that issue. * * * In the former suit the court did not settle, in the exercise of its judicial authority, the relative rights of Herman C. Haney and John E. Astner and the Neace-Stark Company, to divert and use, during the irrigation seasons, the quantities of water required from the natural flow of Powder river and its tributaries, with a priority of 1910. The court having failed to adjudge the issue, it follows that there can be no successful defense of former adjudication."

The petitioners assert that to allow the opinion of the court to stand will result in a "complete nullification of section 411, Oregon Laws, and a direct reversal of several opinions of this court heretofore rendered, construing that section of our Code." In other words, the contention of petitioners is, in effect, that whenever a trial court shall enter a decree dismissing a suit, unless such decree expressly provides that it is without prejudice to another suit by the plaintiff for the same cause, it shall constitute a bar to the second suit, although the issues are undetermined in the prior suit. Such is not the law, and neither the section of the Code referred to nor the decisions of this court sustain the defendants' contention. That section of the Code provides, among other things:

"Whenever upon the trial it is determined that the plaintiff is not entitled to the relief claimed or any part thereof, a decree shall be given dismissing the suit, and such decree shall have the effect to bar another suit for the same cause or any part thereof. * * *"

Mark the language, "Whenever * * * it is determined that the plaintiff is not entitled to the relief claimed," etc. By the language of this section, before there is a decree of dismissal that constitutes a bar, there shall be a determination by the court. A determination of what? The material issues, as made by the pleadings, of course.

In the instant case, the court made no determination of the issue in question. The court expressly said so, and its declaration is of record and has been received in evidence by the offer of the defendant, for the purpose of proving its plea of former adjudication. The defendant made the record. It is incumbent upon him who would avail himself of the defense of former adjudication to establish it. The evidence that has been offered and received into the record not only fails to prove that the matter at issue was adjudicated in the former hearing, but conclusively establishes that the court made no determination of the vital issue above noted.

The Oregon authorities cited are in harmony with our holding in the principal opinion. Those cases were decided upon the merits, while the decree pleaded as a bar in this cause was not given upon the merits. The petitioner quotes language used by Mr. Justice Harris in Ton Toy v. Gong, 87 Or. 454, 170 P. 936. That case not only fails to support the contention of petitioner, but is authority for our holding in the former case. Quoting from the body of the opinion, we have:

"The pleadings, findings of fact, and conclusions of law filed in the suit in equity were competent for the purpose of showing that the question of partnership was actually involved in the decree and actually and necessarily decided. Gentry v. Pacific Live Stock Co., 45 Or. 233, 238 (77 P. 115); Astoria v. Astoria & Columbia River R. Co., 67 Or. 538, 549 (136 P. 645, 49 L. R. A. [ N. S.] 404, 23 Cyc. 1292; 15 R. C. L. 979, 980, 1048, 1049).

"The record discloses that the question of the existence of the partnership was actually decided and necessarily included in the decree, and the decision of that question was necessary to the decree; * * * the decree of dismissal was not made 'without prejudice to another suit by the plaintiff for the same cause or any part thereof,' but it was an unqualified decree of dismissal on the merits, and is therefore res adjudicata."

You will note that the Justice is careful to say that[109 Or. 125] --"the question * * * was actually decided and * * * that * * * it was an unqualified decree of dismissal on the merits;" and, "the pleadings, findings of fact and conclusions of law filed in the suit * * * were competent" evidence of the court's determination.

The opinion in Swift v. McPherson, 232 U.S. 51, 34 S.Ct. 239, 58 L.Ed. 499, is pertinent. It was claimed in that case, as in this, that a dismissal in equity, without qualifying words, is a final decision on the merits. Mr. Justice Lamar, in expressing the opinion of the court, said:

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