Knapp v. City of Omaha

• Decision Date: 12 July 1963
• Docket Number: No. 35417,35417
• Citation: 122 N.W.2d 513,175 Neb. 576
• Parties: Grace E. KNAPP, Appellant, v. CITY OF OMAHA, a City of the Metropolitan Class in the State of Nebraska, et al., Appellees.
• Court: Nebraska Supreme Court

Page 513

122 N.W.2d 513

175 Neb. 576

Grace E. KNAPP, Appellant, v. CITY OF OMAHA, a City of the Metropolitan Class in the State of Nebraska, et al., Appellees.

No. 35417.

Supreme Court of Nebraska.

July 12, 1963.

Syllabus by the Court

1. It is a fundamental principle of jurisprudence that material facts or questions which were an issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action.

2. A cause of action, once finally determined between the parties on the merits, cannot afterwards, so long as such judgment remains in force, be litigated by new proceedings, either before the same or any other tribunal.

3. The foregoing rule applies, not only to judgments which are the result of a trial of issues of fact, but also to judgments on demurrer, where such judgments go to the merits of the case; but a judgment on a demurrer, which is based on a technical defect of pleading, a lack of jurisdiction, or the like, does not involve the merits of the controversy, and will not support the plea of res judicata.

4. When a plea of res judicata is interposed, the controlling question is whether the judgment offered to support it is based on the merits of the controversy.

5. A judgment of dismissal after sustaining a demurrer based on the failure to state a cause of action is a judgment on the merits even though by amendments a good cause of action might be stated.

6. A general rule is that, while a court will take judicial notice of its own records, it will not in one case take judicial notice of the record in another case.

7. However, where cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in the former proceedings involving one of the parties now before it, the court has the right to examine its own records and take judicial notice of its own proceedings and judgments in the former action.

8. Matters so judicially noticed are properly considered when determining the questions presented by a demurrer.

Don S. Bergquist, Jr., O'Sullivan & O'Sullivan, Omaha, for appellant.

Herbert M. Fitle, City Atty., Bernard E. Vinardi, Deputy City Atty., Frederick A. Brown, Edward M. Stein, Sebastian J. Todero, Walter J. Matejka, Frederick S. Geihs, Omaha, for appellees.

Heard before WHITE, C. J., and CARTER, MESSMORE, TEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

BROWER, Justice.

This is an action brought in the district court for Douglas County for personal injuries alleged to have been sustained by the appellant when, on July 15, 1957, she fell, injuring her back. The injury occurred at the intersection of Sixteenth and Dodge Streets in Omaha, Nebraska, and the action is predicated upon an alleged negligent construction of a curb at that intersection.

The defendants were the city of Omaha and its mayor and council members.

The defendants interposed what is denominated a special appearance 'for the reason that the court is without jurisdiction of the subject matter.'

On January 29, 1962, the trial court entered an order sustaining the special appearance and dismissing the action. This order recites that the district court for Douglas County had jurisdiction of the parties and the subject matter in a prior action. Continuing, the recitation states that the previous case had been dismissed upon the plaintiff declining to plead further; that after the dismissal the plaintiff appealed to the Supreme Court from the ruling on the demurrer and order of dismissal where the decisions of the trial court were sustained; and that the cause of action had therefore been fully adjudicated.

The plaintiff filed a motion for rehearing on the order sustaining the special appearance. The motion being overruled on September 13, 1962, the plaintiff has brought the matter to this court on appeal.

The defendants filed a motion herein to dismiss the appeal because it was not taken in time, contending that where no trial of matters of fact had occurred the time for appeal should run from the order of dismissal and not from the time of overruling the motion for rehearing. This court previously overruled this motion because of its rulings in McGerr v. Marsh, 148 Neb. 50, 26 N.W.2d 374, and Brasier v. Cribbett, 166 Neb. 145, 88 N.W.2d 235.

Plaintiff contends the trial court erred in sustaining the special appearance and dismissing the action.

The cause before us quite patently turns on the effect of the prior action and its disposition by the trial court and this court.

It also involves questions concerning the propriety of the trial court in taking judicial notice of the previous cause and in considering the same on its ruling sustaining the special appearance and dismissing the action.

The opinion of this court in the first case is found in Knapp v. City of Omaha, 172 Neb. 78, 108 N.W.2d 419. The substance of the allegations of the plaintiff's petition is there outlined in greater detail than herein. A comparison of the petitions shows they are the same except in two respects. In the former case the date of the filing of the statutory notice, required by section 14-801, R.R.S.1943, was left blank, viz.: '___ day of July, 1957.' In the present case the notice is alleged to have been filed on the '23rd day of July, 1957' and a copy of the notice is attached. Also in the present petition the mayor and councilmen who are joined with the city as defendants are different than in the former case, apparently because of a change in the officers.

'It is a fundamental principle of jurisprudence that material facts or questions which were an issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action.' Wischmann v. Raikes, 168 Neb. 728, 97 N.W.2d 551. See, also, Glissmann v. Orchard, 152 Neb. 500, 41 N.W.2d 756.

"A cause of action, once finally determined between the parties on the merits, cannot afterwards, so long as such judgment remains in force, be litigated by new proceedings, either before the same or any other tribunal. * * * The foregoing rule applies, not only to judgments which are the result of a trial of issues of fact, but also to judgments on demurrer, where such judgments go to the merits of the case; but a judgment on a demurrer, which is based on a technical defect of pleading, a lack of jurisdiction, or the like, does not involve the merits of the controversy, and will not support the plea of res judicata." Trainor v. Maverick Loan & Trust Co., 92 Neb. 821, 139 N.W. 666, citing Yates v. Jones Nat. Bank, 74 Neb. 734, 105 N.W. 287.

In Fuchs v. Parsons Constr. Co., 172 Neb. 719, 111 N.W.2d 727, it is stated: "When a plea of res judicata is interposed, the controlling question is whether the judgment offered to support it is based on the merits of the controversy."

In the case presented in our prior decision, Knapp v. City of Omaha, supra, the trial court had sustained a general demurrer on the plaintiff's original petition on the ground it did not state a cause of action. Under our statute, section 25-854, R.R.S.1943, the plaintff would doubtless have been given the right to amend her petition in the trial court. This the plaintiff failed to do but elected to stand on her petition and the action was dismissed. She appealed from this dismissal and this court sustained the trial court in its order of dismissal. In the cited case this court stated the defendants suggested nine reasons why the demurrer should have been sustained, but it was only necessary to consider one of them. The defect in plaintiff's petition which was decisive in the prior determination was that the necessary notice of the injury had not been filed within the time prescribed by section 14-801, R.R.S.1943. The plaintiff...