Holderman v. Hood

• Decision Date: 09 May 1908
• Docket Number: 15,239
• Citation: 78 Kan. 46,96 P. 71
• Parties: ELIZABETH HOLDERMAN v. CALVIN HOOD et al
• Court: Kansas Supreme Court

96 P. 71

78 Kan. 46

ELIZABETH HOLDERMAN v. CALVIN HOOD et al

No. 15,239

Supreme Court of Kansas

May 9, 1908

Decided January, 1908.

Error from Lyon district court; FREDERICK A. MECKEL, judge.

STATEMENT.

A MORE detailed statement of the facts involved in this action will be found in Holderman v. Hood, 70 Kan. 267, 78 P. 838, Benson v. Battey, 70 Kan. 288, 78 P. 844, and Martindale v. Battey 73 Kan. 92, 84 P. 527, the last two cases being separate appeals in the same action. In all of these cases the same facts were pleaded by this plaintiff in error and the sufficiency of such pleading was involved. A sufficient resume of the facts to give an understanding of the questions herein discussed is as follows:

In 1901 the plaintiff in error filed her amended petition in this action, to which the defendants in error filed a general demurrer, which the district court of Lyon county sustained and the case was brought to this court for a review of that ruling. This court held that the petition stated a cause of action and reversed the judgment. (Holderman v. Hood, supra.)

During the pendency of the action the case of Martindale v. Battey was brought in the district court of Shawnee county. Mrs Holderman was made a party defendant and filed her cross-petition therein, setting up the same facts as in her amended petition in this action. A demurrer was filed to such cross-petition on several grounds, including a misjoinder of causes of action and want of sufficient facts to constitute a cause of action. On the hearing this demurrer was also sustained, but the record did not indicate upon which ground the ruling was based. Proceedings in error were brought in this court to reverse that decision, and the judgment was affirmed on the ground that the cross-petition stated two causes of action which were improperly joined. Thereafter a motion was made and allowed in the district court of Shawnee county to correct the journal entry of the judgment of that court, and the record as amended showed that the demurrer therein had been sustained on the ground that the petition did not state facts sufficient to constitute a cause of action. Later the defendants in error amended their answer in this case and pleaded the judgment of the district court of Shawnee county as res judicata upon the same facts. Upon the trial of this plea the court found in favor of the defendants in error and rendered judgment against the plaintiff in error for costs. She again brings the case here to reverse that judgment.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT--Record--Question to be Reviewed. It is incumbent upon the plaintiff in an error proceeding brought in this court to reverse the judgment of a district court to see that the record presented correctly embodies the question to be reviewed.

2. JUDGMENTS--Demurrer to Petition on Two Grounds Sustained--Ground of the Decision Not Shown--Effect of Affirmance. Where it is sought to reverse a judgment rendered upon the sustaining of a demurrer to a petition, which demurrer was upon two grounds (viz., insufficient statement of facts and misjoinder of causes of action), and the record fails to show upon which ground the demurrer was sustained, and this court affirms the judgment on the ground of misjoinder, when in fact the judgment was that no cause of action was stated, held, that the judgment below stands affirmed as rendered, and can again be attacked only by a timely application, accompanied by a corrected record of the judgment appealed from, to reopen the decision of this court.

3. JUDGMENTS--Demurrer to Petition Because of Insufficient Facts Sustained--Res Judicata. When a demurrer to a petition is sustained upon the general ground of insufficient facts pleaded, and the pleader elects to stand thereon and judgment is rendered against him, such judgment is final upon the facts pleaded, and such facts can not be relitigated thereafter between the same parties in any court. (Martindale v. Battey, 73 Kan. 92, 84 P. 527.)

Rossington & Smith, and J. S. West, for plaintiff in error.

Ferry & Doran, L. B. Kellogg, and Dennis Madden, for defendants in error.

SMITH J. GRAVES, BENSON, JJ., not sitting.

OPINION

SMITH, J.:

One question only is involved: Is the plaintiff in error estopped by the judgment of the district court of Shawnee county rendered upon the general demurrer?

It is contended by the plaintiff in error that the judgment, while in form affirmed by this court, was essentially reversed; that the decision of the district court was that the cross-petition stated no cause of action, while the judgment was affirmed in this court for the reason that the cross-petition stated two causes of action improperly joined; that estoppel is based upon equity, and that equity goes behind forms and superficial appearances and determines what facts were really adjudicated and accords to every litigant in court a hearing or an opportunity to be heard upon every fact which is determinative of his rights.

On the other hand the defendants in error, admitting that the decision of the district court of Shawnee county is directly contrary to the decision of this court in Holderman v. Hood, 70 Kan. 267, 78 P. 838, on a pleading essentially the same, and admitting that the judgment was affirmed on a ground diametrically opposed to the ground upon which it was rendered, say, nevertheless, that a general demurrer admits all the facts as pleaded, and a judgment sustaining the demurrer is a judgment upon these facts, and, however erroneous, if unreversed it is conclusive of the legal effect of such facts in all courts for all time; that the judgment of the district court of Shawnee county was not reversed, but was in fact affirmed; that the ground upon which it was affirmed is immaterial; that the burden of showing the error of the district court rested upon the plaintiff in error, and, having failed in this, the judgment is conclusive against her and conclusive of this action.

The several propositions of the defendants in error are in accord with the general rules of law and are impregnable. It is the judgment of the district court, and not the judgment of this court, which was pleaded as res judicata. This court rendered no independent judgment, but affirmed the judgment appealed from, stating the reasons therefor. Bearing this in mind, it is apparent there is no room for the rule that upon a plea of res judicata the court will go behind the formal judgment to ascertain what was really adjudicated and, if necessary for the purpose, will receive evidence aliunde. The allegations of the cross-petition, admitted by the demurrer to be true, are the facts which were adjudicated and which can neither be added to nor taken from It was said in De Sollar v. Hanscome, 158 U.S. 216, 15 S.Ct. 816, 39 L.Ed. 956: "It is of the essence of estoppel by judgment that it is certain that the precise fact was determined by the former judgment." (Syllabus.) A judgment rendered upon the sustaining of a general demurrer meets this test. (Brown v. Kirkbride, 19 Kan. 588; Merrill v. Ness County, 7 Kan.App. 717, 52 P. 109; McLaughlin v. Doane, 40 Kan. 392, 19 P. 853, 10 Am. St. Rep. 210; Hyatt v. Challiss, 59 Kan. 422, 53 P. 467; Alley v. Nott, 111 U.S. 472, 4 S.Ct. 495, 28 L.Ed. 491.) No case is cited, nor have we been able to find one, where any equities of the defeated party have countervailed the finality of such a judgment.

Before the plaintiff in error was entitled to have the judgment reversed an error must have appeared from the record, and if the record was incorrect, and if thereby an inhering error did not appear, it devolved upon the plaintiff in error to have it...