Inhabitants of Embden v. Lisherness

• Decision Date: 22 February 1897
• Citation: 36 A. 1101,89 Me. 578
• Parties: INHABITANTS OF EMBDEN v. LISHERNESS.
• Court: Maine Supreme Court

36 A. 1101

89 Me. 578

INHABITANTS OF EMBDEN

v. LISHERNESS.

Supreme Judicial Court of Maine.

Feb. 22, 1897.

(Official.)

Report from supreme judicial court, Somerset county.

Action by the inhabitants of Embden against Granville Lisherness. Reported to the full court Judgment for plaintiff.

E. N. Merrill and G. W. Gower, for plaintiff.

A. Simmons, for defendant.

POSTER, J. Action of debt brought under section 175, c. 6, Rev. St, to recover $207, the amount of tax assessed upon defendant's real estate for the year 1889.

It is admitted that the tax was legally assessed, and has never been paid; that at the December term of this court for the county of Somerset, an action of debt was tried, in which Stillman A. Walker, collector of taxes for the plaintiff town, was plaintiff, and against this same defendant; that the suit was brought by the collector under section 141, c. 6, Rev. St., to recover the same tax.

The plea in that action was the general issue. The jury returned a general verdict for the defendant.

In the present action the plea is the general issue, with brief statement of the former judgment as a bar to the maintenance of this suit.

The plaintiff in this action offered to prove by parol that the only issue upon which said former cause was tried was that of "due notice and demand" given to and made upon the defendant by Walker, as collector, before the bringing of said former suit. This testimony was objected to by the defendant, and the only question before the court is upon the admissibility of this evidence. If admissible, judgment is to be rendered for the plaintiff.

We think it admissible.

At the former trial, at which the general issue was pleaded, it was competent for the defendant to show that no "due notice" had been given before the bringing of the suit, as required by the statute authorizing a collector of taxes to sue in his own name. This was the issue presented, and upon which the defendant prevailed. The merits of the case, except as to the question of due notice, were not passed upon.

The gist of the present suit is whether the defendant owes the tax for which he is sued. The only defense is that the collector of taxes brought suit for the same at a former term, and in the trial the defendant prevailed. In that suit it was essential to show "due notice" as well as a legal tax. Failure to do either, and the verdict would be the same. Both allegations in the writ had to be established to make out a prima facie case. The record of that case is before us; but with the general issue alone pleaded, and with a general verdict of "does not owe," how are we enabled to tell upon which allegation the defendant succeeded? There is nothing, as appears from the record, to determine this question. Whether it was for want of due notice, or the want of a legal tax, can be shown only by evidence aliunde the record; and the point upon which the case turned must necessarily be proved, if proved at all, by such evidence.

This is what the plaintiff in the present suit offered to prove.

A judgment, in order to be conclusive as an estoppel, must have been rendered upon the merits of the case and the same subject-matter. Clark v. Young, 1 Cranch, 181, 194; Phelps v. Harris, 101 U. S. 370; Dunlap v. Glidden, 34 Me. 517, 519; Hill v. Morse, 61 Me. 541; Smith v. Brunswick, 80 Me. 189, 13 Atl. 890; Young v. Pritchard, 75 Me. 513, 517; Arnold v. Arnold, 17 Pick. 4; Cunningham v. Foster, 49 Me. 68, 70.

It is well settled that where several issues are presented by the declaration and pleadings, and the record fails to show upon which in fact the judgment was rendered, it is competent to show the fact by evidence aliunde; not however, to contradict the record, but in support of it. Dunlap v. Glidden, supra; Jones v. Perkins, 54 Me. 393, 396; Rogers v. Libbey, 35 Me. 200; Chase v. Walker, 26 Me. 555; Cunningham v. Foster, 49 Me. 68, and cases there cited. See, also, Lander v. Arno, 65 Me. 26; Hood v. Hood, 110 Mass. 463; Blodgett v. Dow, 81 Me. 197, 201, 16 Atl. 660. See, also, Walker v. Chase, 53 Me. 258,—a leading case in this state, where this doctrine is fully considered.

While the rule is strict that evidence aliunde cannot be introduced to contradict the record, it is a universally acknowledged rule that a judgment obtained upon the ground that an alleged demand is not yet due is no bar to an action subsequently brought on the same demand, after it has fallen due. Freem. Judgm. §§ 268, 274.

A suit upon a bond before condition broken, in which the defendant prevails on that account, is no bar to an action brought against the same defendant after condition broken. McFarlane v. Cushman, 21 Wis. 401.

So, where a suit is brought for several demands, some of which are due and others of which are not due, and a general verdict is given...