Hunter Land & Development Co. v. Caruthersville Stave & Heading Co.

• Decision Date: 17 September 1928
• Parties: HUNTER LAND & DEVELOPMENT COMPANY, RESPONDENT, v. CARUTHERSVILLE STAVE & HEADING COMPANY AND WILL CAREY, APPELLANTS. [*]
• Court: Missouri Court of Appeals

9 S.W.2d 531

223 Mo.App. 132

HUNTER LAND & DEVELOPMENT COMPANY, RESPONDENT, v. CARUTHERSVILLE STAVE & HEADING COMPANY AND WILL CAREY, APPELLANTS. ^[*]

Court of Appeals of Missouri, Springfield

September 17, 1928

Appeal from the Circuit Court of Pemiscot County.--Hon. Henry C Riley, Judge.

REVERSED.

Judgment reversed.

Von Mayes for appellants.

Ward & Reeves for respondent.

BAILEY J. Cox, P. J., and Bradley, J., concur.

OPINION

BAILEY, J.

Action in trover for conversion of certain timber. It is alleged in the petition that plaintiff was the owner of certain real estate which was covered with valuable timber; that defendant Carey entered upon said lands without right or authority and cut a large amount of valuable timber standing and being thereon and sold and delivered same to defendant Caruthersville Stave & Heading Company. The petition further described the kind, amount and value of the timber and prays judgment in the sum of $ 1740.

Defendants filed an amended answer admitting plaintiff to be the owner of the real estate described and that defendant Carey entered upon said land, cut standing timber and sold and delivered a part thereof to defendant Caruthersville Stave & Heading Company (hereinafter referred to as the Stave Company.)

For further answer defendants set up a misjoinder of causes of action, in that defendants are not joint tortfeasors as to all the timber cut by defendant Carey; that on the 4th of June, 1924, the plaintiff filed a suit in the circuit court of Pemiscot county, in the nature of an action for trespass, to recover from defendant Will Carey the value of timber cut from said land, and other land adjoining the land described in the present suit, and that the timber sued for in this action was a part of the timber sued for in said former suit; that plaintiff recovered judgment in the sum of $ 487.50 in said former suit which has been fully paid and satisfied; that at the trial of said former suit, after introducing evidence as to the amount and value of the timber described in the present suit, plaintiff dismissed its claim for the timber described in the present suit, thereby extinguishing said claim and the former judgment is res adjudicata as to the subject-matter of this action. No reply was filed. On trial to a jury the verdict and judgment was for plaintiff in the sum of $ 950, from which judgment defendants appeal.

The evidence shows plaintiff to have been the owner of section twenty-seven and the southwest fractional quarter of section twenty-six in Township twenty of Range thirty-one, the lands from which the timber involved in this particular suit were cut. Section twenty-six lies to the east of section twenty-seven; defendant Carey, it seems, had purchased the standing timber on part of the northwest quarter of section twenty-six lying immediately north of plaintiff's land in section twenty-six and east of plaintiff's land in section twenty-seven. It was while cutting the timber he had the right to cut in section twenty-six that defendant Carey, through mistake, cut the timber on plaintiff's adjoining land, aforesaid. Plaintiff discovered the mistake and notified defendant Carey, who thereupon discontinued cutting timber on plaintiff's lands. At that time a large amount of cut timber was on the land but plaintiff, as we understand, did not attempt to recover therefor. Other timber cut from plaintiff's said land had been hauled away by Carey and delivered to the Stave Company, codefendant, and purchaser thereof, and was piled on the west bank of the Mississippi. There was some evidence tending to prove the amount and value of this timber.

Defendant offered in evidence the petition and judgment (afterwards paid and satisfied) in the former suit heretofore mentioned. This petition was between the same plaintiff and defendants as the present suit but was in trespass, seeking treble damages as provided by statute, for the wilful cutting and removing of timber from sections twenty-seven, twenty-six and twenty-two in Township twenty of Range thirteen. Before the case was submitted to the jury, plaintiff dismissed its claim as to timber taken from sections twenty-six and twenty-seven, being the same land described in the present suit. Defendants' answer, filed in the former suit, set up that the defendant Stave Company purchased the timber from defendant Carey in the belief that it was cut from timber owned by it in said section twenty-two, adjoining that owned by plaintiff, and offered payment for timber cut from plaintiff's land in the sum of two hundred dollars ($ 200). Such other evidence as may be necessary to an understanding of the issues in the present suit will be hereinafter referred to. Defendants' brief contains ten assignments of error. It is first contended that the former suit of plaintiff bars a recovery in this action. Defendant argues that defendant Carey, at the time the former case was filed, was liable to plaintiff in trespass or trover, not only for cutting and removing timber from section twenty-two for which judgment was recovered, but was also liable in trespass or trover for cutting and removing timber from sections twenty-six and twenty-seven, for the conversion of which damages are sought against both defendants in this action; that the cutting of all the timber was one general cutting and he was liable in trespass or trover for all the timber cut by him; that there was but one cause of action and when plaintiff dismissed a part of his claim in the former suit and obtained judgment against defendant for the balance, defendant Carey could not subsequently be sued for that part of the claim dismissed.

This court, following a ruling of our Supreme Court in Berry v. Milling Company, 304 Mo. 292, 263 S.W. 406, lately held that: "The general rule is that all issues which could properly have been disposed of on their merits in a former suit between the same parties and their privies are considered as having been settled, though said issues may not in fact have been litigated or determined." [Shelly v. Ozark Pipe Line Corp., 2 S.W.2d 115, 121.]

To the same effect are: Roberts v. Neal, 137 Mo.App. 109, 119 S.W. 461; Puckett v. Ass'n, 134 Mo.App. 501, 114 S.W. 1039; Dolph v. Maryland Casualty Co., 261 S.W. 330.

In the latter case the rule is thus stated: "Ordinarily a judgment between the same parties in a former action is conclusive as to all matters which might have been litigated therein, but where the causes of action are different it is only conclusive as to the matters which were in fact litigated therein." [332.] The law, as stated in the Dolph case, contains the principle upon which plaintiff counters defendant's contention in the case at bar. Plaintiff argues that the former suit was for treble damages for trespass under section 4242, Revised Statutes 1919; that the present action is for single damages for conversion; that they are different causes of action requiring different proof and different measures of damages and therefore one is not a bar to the other, even if both actions involved the same timber. Without setting out the two petitions, it appears the plaintiff and defendants were the same in the former and that every allegation is contained in the present petition that is found in the petition in the former suit except that in the present suit it is alleged that defendants converted the timber while in the former suit it is alleged that defendants committed acts of trespass and the prayer is for treble damages. In other words the present action, in all other essential particulars seems to contain allegations of fact sufficient to...