Harris v. Sparrow

• Decision Date: 22 April 1926
• Parties: HARRIS et al. v. SPARROW.
• Court: Virginia Supreme Court

132 S.E. 694

HARRIS et al.

v.SPARROW.

Special Court of Appeals of Virginia.

April 22, 1926.

Error to Circuit Court of City of Portsmouth.

Action instituted by notice of motion for judgment filed by Sarah Sparrow against J. C. Harris and another, executors of John Winslow, deceased. Judgment for plaintiff, and defendants bring error. Affirmed.

Jno. W. Happer and Thos. H. Reid, both of Portsmouth, for plaintiffs in error.

Jas. G. Martin & Bro., of Norfolk, and Thos. E. Gilman, of Portsmouth, for defendant in error.

CRUMP, P. The plaintiffs in error complain of a judgment rendered against them in July, 1924, in favor of Sarah Sparrow, the defendant in error, for $3,120 in an action instituted by a notice of motion for judgment.

The notice of motion filed by Sarah Sparrow as plaintiff in the trial court assigned two separate grounds upon which she based her right to recovery against the defendant executors. In the first place, she alleged that John Winslow, the decedent, had contracted with her, in his lifetime, that he "would will to the plaintiff all his property" upon consideration that she would feed, board, and care for him during the balance of his life; that she had performed her part of the contract: but that John Winslow had failed to will her his property. In the next place, the plaintiff alleges, in the nature of second count, as follows:

"That heretofore, to wit, in the year 1902, plaintiff and said John Winslow contracted that plaintiff should board and feed and care for him until his death, and that he would pay to plaintiff a reasonable amount at his death for such board, feeding, and care; and plaintiff fully performed her part of said contract, and boarded, fed, and cared for him until his death in 1923; but neither he nor his executors have paid plaintiff, but have failed so to do; and the reasonable value of such board, feeding, and care is a large amount, to wit, $5,000."

To this notice the defendants filed a plea of non assumpsit and grounds of defense, denying liability under either cause of action asserted against them.

The defendants, plaintiffs in error here, rely upon three assignments of error, which will be considered in the order in which they occur in the petition for writ of error.

The first assignment of error is based upon the refusal of the trial court to dismiss the motion or render judgment for the defendants, for the reason alleged by the defendants that the matters in issue had been fully adjudicated between the parties in a chancery cause, decided in the same court in which Sarah Sparrow was the plaintiff and the same executors and others were defendants. The bill of exceptions in this regard shows the manner in which this question of res adjudicata was raised as follows:

"Be it remembered that on the day of the trial of this case, to wit, July 17, 1924, and before the trial thereof, the defendants, by their attorney, presented to the court Exhibits Nos. 1, 2, and 3, which are fully set forth with the evidence, in the plaintiff's bill of exceptions No. 2, and upon their plea of non assumpsit and grounds of defense, moved the court to render judgment for the defendants upon the notice of motion and to dismiss the same because the matters in issue had been adjudicated and fully determined. * * * "

The court overruled the said motion of the defendants and required them to go to trial upon the merits of the case, to which ruling the defendants excepted. The three documents upon which this motion was based, referred to in the bill of exceptions as Exhibits Nos. 1, 2, and 3 with the evidence, were introduced upon the trial before the jury. Exhibit No. 1 is a copy of the will of John Winslow, deceased, consisting of three separate papers, and also the order of the hustings court of Portsmouth admitting the three writings to probate as the will of John Winslow, entered on the 21st day of January, 1922. The Exhibit No. 2 is a decree entered by the same court on the 30th day of October, 1923, in a chancery cause in which Sarah Sparrow was complainant and the two executors of John Winslow, together with the parties claiming under his will, were defendants. Exhibit No. 3 was a copy of an order of the Supreme Court of Appeals of Virginia entered on the 23d day of January, 1924, in which a writ of appeal was refused upon the petition of Sarah Sparrow presented to the Court of Appeals seeking an appealfrom said decree of October 30, 1923, in the chancery cause. These three exhibits are sufficient to show that the bill in the chancery cause was filed for the purpose of construing the will of the testator. It appears from the decree, which is one settling the principles of the cause and the rights of the parties, that the testator had left to Sarah Sparrow "all my personal effects." The court held that that language in the will was used in association with the words "testator's bed, earrings, and necklace, " and that the testator intended under the principle of ejusdem generis that all his personal effects should be taken in connection with the latter words just above quoted and should not be taken in connection with the testator's real estate or money in bank. The decree further directed that the executors should carry out the provisions of the will in conformity with its meaning as adjudged and declared by the court. This was the decree from which, on the petition of Sarah Sparrow, the appeal was refused. As seen above, the appeal was refused on the 23d day of January, 1924; the notice of motion was filed on the 24th day of March, 1924, and the record does not show the date of its service. It is manifest that the issue between the parties in the chancery cause only related to the proper construction of the will of the testator, and therefore the cause of action was not the same cause of action upon which the notice of motion was based.

In applying the doctrine of estoppel by former judgment, confusion of thought and expression, as was said in the recent case of Brunner v. Cook, 114 S. E. 650, 134 Va. 266, is apt to arise unless the distinction is carefully observed in the application of the doctrine of res adjudicata between a case in which the defense is made when the second case is between the same parties and upon the same cause of action, and the case in which the subsequent action, although between the same parties or some of them, is not upon the same cause of action. In the first-mentioned instance the former judgment estops the parties as to all matters litigated or which might have been litigated. In the second instance, the former judgment acts as an estoppel only as to the matters actually put in issue and adjudicated by "the court. It is apparent here that the second action, if taken as between the same parties, is upon an entirely different claim or demand, and that the decree in the chancery cause offered by the defendants operates as an estoppel only as to the matters in issue or point controverted upon which the finding...