Lindsley v. Union Silver Star Mining Co.

• Decision Date: 11 January 1901
• Docket Number: 201.
• Parties: LINDSLEY v. UNION SILVER STAR MIN. CO.
• Court: U.S. District Court — District of Idaho

106 F. 468

LINDSLEY v. UNION SILVER STAR MIN. CO.

No. 201.

United States Circuit Court, D. Idaho, Northern Division.

January 11, 1901

Stern Hamblen & Lund, for plaintiff.

Domer &amp Estep and Wm. H. Clagett, for defendant.

BEATTY District Judge.

The record herein shows that prior to the commencement of this action the plaintiff had commenced an action against the same defendant concerning the same cause in the state court; that the defendant, after being duly summoned, appeared in that court, and filed its answer fully setting out its defense and at the same time filed its demurrer setting forth that plaintiff's complaint did not state facts sufficient to constitute a cause of action, and that it was ambiguous uncertain, etc.; that the demurrer was heard, and was sustained, to which plaintiff's counsel excepted; that the court gave plaintiff leave to amend his complaint, which his counsel declined to do, whereupon defendant moved the dismissal of the cause, which was done, both parties being present by their counsel in all such proceedings. This action being commenced in this court, the defendant interposed its plea setting forth the above-stated facts, and the record to show them, and further alleged therein that the cause of action was the same in both suits; that the state court had jurisdiction of the cause, of the subject-matter, and of the parties; that plaintiff was represented by counsel in all the proceedings; that the judgment in the state court remains and no proceedings have been taken to prosecute an appeal therefrom, and that the matters and things set forth in the two actions are the same. To this plea the plaintiff interposed his demurrer, which is the question for consideration. The demurrer admitting the truth of the allegations of the plea, the only question for determination is whether the judgment of dismissal, under the circumstances stated, is a bar to this action. There are authorities holding that a judgment of dismissal upon a demurrer which involves only questions of form or of pleading, and which does not involve and determine questions of fact on the merits of the case, is not res adjudicata. The record in this shows clearly that plaintiff was in a court of his own selection, one of competent jurisdiction; that he had every opportunity to have his case fully heard; that, as the answer was on file, he knew what the defense was; and, notwithstanding all this, he permitted the judgment against him. In the interest of the rule that parties shall not be harassed by frequent suits involving the same matters, and that there shall be an end to litigation, it would seem that the plaintiff should be estopped by his proceedings in his former action from proceeding further in this. However, if the case of Gould v. Railroad Co., 91 U.S. 526, 23 L.Ed. 416, is not misconstrued, it fully determines the question here involved in favor of the plea and against the demurrer. It appears in that case that an action had been commenced in a state court, in which judgment was rendered in favor of the defendant upon its demurrer to the declaration. When the same action was afterwards commenced in the United States court, the defendant pleaded this former judgment in bar, to which a demurrer was interposed and overruled, whereupon plaintiff replied, alleging material differences in the statements of the facts recited in the two declarations, and claimed that the judgment in the first case was not upon the merits, to which replication the defendant...