Kern v. Wilson
| Decision Date | 13 May 1891 |
| Citation | 48 N.W. 919,82 Iowa 407 |
| Parties | J. B. KERN & SON, Appellees, v. H. G. WILSON, Appellant |
| Court | Iowa Supreme Court |
Appeal from Wright District Court.--HON. J. L. STEVENS, Judge.
ACTION to determine the right to the possession of a certain drug stock, claimed by the plaintiffs under a chattel mortgage from J. C. Dwyer, and by the defendant, as sheriff, under a writ of attachment in favor of Olney & McDaid against said Dwyer. There was a verdict and judgment for the plaintiffs from which the defendant appeals.
Affirmed.
Nagle & Birdsall, for appellant: The general rule is, that the judgment of a court of competent jurisdiction is conclusive between the parties upon all the questions directly involved in the issue, and necessarily determined by it. The most infallible test as to whether a former judgment is a bar is to inquire whether the same evidence will maintain both the present and the former action. Freeman on Judgments, sec 259; Hahn v. Miller, 68 Iowa 746; Delaney v Reade, 4 Iowa 293; Atkins v. Anderson, 63 Iowa 742. In the case at bar identically the same issues are presented in the two cases, and identically the same evidence was essential to maintain the cause of action in the original case of J. B. Kern & Son as in the present action. The law requires that when judgment is rendered upon matter in abatement, and not upon the merits, the judgment must recite that fact, and so declare. Code, sec. 2851; Atkins v. Anderson, 63 Iowa 739. It must be presumed from a general judgment that all the issues were decided in favor of the successful party. Finch v. Hollinger, 46 Iowa 216. The judgment entered in the former case of J. B. Kern & Son v. this defendant, is in accordance with the requirements of the law. Code, secs. 3238, 3239. It properly directed the return of the property. Jansen v. Effey, 10 Iowa 227; Mason v. Richards, 12 Iowa 73. The judgment for return of the property or its value as found by the jury was correct and complete in itself. McNorton v. Akers, 24 Iowa 369; Clark v. Warner, 32 Iowa 29. The very position appellee must now take to avoid the force of the judgment as an adjudication was urged by them upon the rendition of the original judgment in question. Thompson v. McKean, 43 Iowa 402; Finch v. Hollinger, 48 Iowa 178; Moore v. Jeffers, 53 Iowa 202. A fact expressly or impliedly adjudicated is as binding upon the parties as are the conclusions of law reached by the court, and cannot be again litigated. Smith v. Zahensdorf, 30 Iowa 402; Denham v. Bower, 37 N.Y. 80; Goodenow v. Litchfield, 59 Iowa 226. The term "drug stock" has a different meaning than "the entire stock of drugs, medicine, oils and paints and goods of every description," and this court has so held in Van Evra v. Davis, 51 Iowa 637. There being no evidence it was clearly the duty of the court to construe the terms of the mortgage, and instruct the jury what class of goods was included therein. Eaton v. Smith, 20 Pick. 150; 2 Parson on Contracts [6 Ed.] p. 493. There was not a particle of evidence introduced in the case to which the court's instruction upon this point could apply; it is based wholly upon a state of facts of which there is no proof, The jury cannot go outside of the evidence and determine the rights of the parties upon their own observation, judgment and experience. Byington v. McCaddan, 34 Iowa 216: Moffit v. Cressler, 8 Iowa 122; Benton v. Railroad, 55 Iowa 497.
R. H. Whipple, for appellees: A verdict of a jury constitutes no bar unless followed by a judgment, and the judgment itself will be no bar, unless the matter in issue has been decided upon its merits. Delaney v. Reade, 4 Iowa 292; Boyer & Barnes v. Austin, 54 Iowa 402; Atkins v. Anderson, 63 Iowa 739; Griffin v. Seymour, 15 Iowa 30. The order directing a verdict, and the judgment upon the verdict, are to be construed together in order to determine the meaning of the court. A judgment, if not strictly in form, may be aided and explained by other parts of the record not inconsistent therewith in determining what disposition of the case was actually made. Andrews v. School Dist., 27 N.W. 302; Bigelow on Estoppel, 36, 50. So the judgment here is explained by the order taking the case from the jury. Burwell v. Knight, 51 Barb. 269; Dexter v. Clarke, 22 How. Pr. 289; Boom v. St. Paul, 33 Minn. 253. The decision of the court was simply a general judgment for the return of the property upon the dismissal of the suit of defendant's motion, and the court could make no other disposition of the case. It was simply a judgment of dismissal. A judgment in form for the defendant may or may not be upon the merits. Freeman on Judgments, 261; Andrews v. School Dist., 27 N.W. 303. That the order directing a verdict and the judgment should both be considered together, is upheld in Roberts v. Hamilton, 56 Iowa 633. Defendant's motion for a nonsuit was a waiver of his right to have judgment on the merits by reason of the nonsuit. It amounts to a dismissal with the consent of the defendant. Freeman on Judgments, 261. The court had no jurisdiction to render the judgment, and hence it is void. Gordon v. Kennedy, 36 Iowa 167; Roberts v. Hamillon, 56 Iowa 683. Void judgments neither bind nor bar anyone. Freeman on Judgments, 117. In the former suit the plaintiffs were claiming as absolute owners of the property, and now, only as qualified owners, or, in other words, mortgagees. A judgment binds a party only in the capacity in which he sues. Erwin v. Garner, 9 N.E. 417; Campbell v. Hunt, 2 N.E. 263. The instruction pertaining to the construction of the description of the property in the mortgage is precisely the same as this court directed to be given in construing the mortgage on the former appeal. Kern v. Wilson, 73 Iowa 490.
I. Defendant, in support of his plea of former adjudication, introduced in evidence the files and records of the circuit court in cases of Olney & McDaid v. J. C. Dwyer and of J. B. Kern & Son v. H. G. Wilson, sheriff. It appears from this record that in the former case an attachment was issued and levied upon the goods in question, and these plaintiffs intervened, and claimed the goods by virtue of their mortgage. The defendant Dwyer failing to appear, default and judgment were entered against him, with an order for a special execution against the attached property. It does not appear that any proceedings whatever were had upon the plaintiffs' petition of intervention, or that their claim to the property was in any wise considered or adjudicated. In the other case these plaintiffs claimed, as in this, the stock of goods, by virtue of the same chattel mortgage and the defendant claimed the stock by virtue of the same attachment. The case went to trial, and after both parties rested, and upon the motion of the defendant herein, it appearing to the court that the notice required and contemplated by chapter 45, Laws of the Twentieth General Assembly, had not, prior to the commencement of this action, been served upon the defendant, the court directed the jury to retain a verdict in favor of the defendant, and fixing the value of the property in controversy at five hundred dollars; and thereupon, under said direction, the jury returned their verdict as follows: "We, the jury, find for the defendant, that he is entitled to the possession of the property in dispute, and we find the value to be five hundred dollars." The plaintiffs made a motion in arrest of judgment and for a new trial, which was overruled, and judgment was entered upon the verdict, "that the defendant have and recover of and from the plaintiffs herein the property taken upon the plaintiffs' writ of replevin herein, together with the costs of suit, taxed at forty-three dollars and thirty cents; said property to be released into the custody of the defendant."
It is evident from these records that there was no decision, upon the merits, of the respective claims of these parties to the property in question in either case. It is said in argument that in the former the petition of intervention was not filed until after the default was entered, and, being too late, was not considered. The record fails to show when it was filed but it also fails to show any adjudication upon it. In the latter case the verdict and judgment are based solely upon the want of notice. The defendant's motion was in the nature of a motion for nonsuit, and the judgment, being entered simply because of the want of notice, is one of dismissal rather than upon the merits. The basis upon which an adjudication bars a further action is that the same matter was or should have been adjudicated in the former case. The claims of these parties to this property were not, and, unless notice of ownership was waived, could not be, adjudicated in the former case between them. See, upon this subject: Arnold v. Grimes, 2 Iowa 1; McCormich v. Grundy Co., 24 Iowa 382; Pfiffner v. Krapfel, 28...
To continue reading
Request your trial