Mayerhoff v. Wortman

• Citation: 218 P. 842,92 Okla. 66,1923 OK 697
• Decision Date: 25 September 1923
• Docket Number: Case Number: 14268
• Parties: MAYERHOFF et al. v. WORTMAN et ux.
• Court: Supreme Court of Oklahoma

1923 OK 697

218 P. 842

92 Okla. 66

MAYERHOFF et al. v. WORTMAN et ux.

Case Number: 14268

Supreme Court of Oklahoma

Decided: September 25, 1923

Syllabus

¶0 1. Action--Joinder of Causes of Action in Tort and on Contract.

Causes of action in tort can only be united with causes of action on contract where they all arise out of the same transaction or transactions connected with the same subject of action, and where the parties to the action in tort are the same as in the action on contract.

2. Judgment--Res Judicata--Requisites.

In order to make a matter res adjudicata, there must be a concurrence of the four conditions following, namely: (a) Identity in the thing sued for (or subject-matter of the suit). (b) Identity of the cause of action. (c) Identity of persons or parties to the action. (d) Identity of the capacity in the person for or against whom the claim is made. Hill v. Buckholts, 75 Okla. 196, 183 P. 42. (See R. C. L. volume 15, pg. 1012, sec. 486).

Commissioners' Opinion, Division No. 3.

Error from County Court, Ottawa County; Q. P. McGhee, Judge.

Action by C. S. Wortman and another against August Mayerhoff and another. Judgment for plaintiffs, and defendants bring error. Affirmed.

J. W. Bartholemew and Duke Ballinger, for plaintiffs in error.

Frank Nesbitt, for defendants in error.

JONES, C.

¶1 This suit was instituted in the county court of Ottawa county, by defendants in error, C. S. Wortman and Mrs. C. S. Wortman, plaintiffs below, to recover the sum of $ 1,000 from the plaintiffs in error, defendants below, upon a written contract, whereby the plaintiffs rented to defendants a certain building in the city of Commerce, Okla., and on the failure of the defendants to pay the rentals due, plaintiffs brought suit to recover same. The defendants filed an answer in which they aver that the written contract upon which the plaintiffs brought suit had been abandoned, and that they were holding the property by reason of a subsequent oral agreement. Defendants filed an amended answer wherein they set up a judgment which had been formerly obtained by the plaintiff herein, C. S. Wortman, against one of the defendants, August Mayerhoff, in the justice court of the sum of $ 50, which was a suit for conversion of certain property, consisting of furniture and fixtures, located in the building rented to the defendants, Mayerhoff and Kitto, and alleged in their amended answer that the suit in the justice court was an adjudication of all issues between plaintiffs and defendants, and that the conversion of the property grew out of the same transaction, to wit, the written rental contract upon which this suit is based, and that the determination of the issues in the justice court is res adjudicata of the matters herein litigated, and that the plaintiffs are estopped to maintain this action; that all of the matters and things in litigation in this suit could have been and should have been litigated in the action maintained in the justice court, and that all of the issues involved in the above suit could have been, and should have been litigated out in a court of competent jurisdiction, and that plaintiff split his cause of action when he filed the suit heretofore referred to in the justice court.

¶2 When the case was called for trial, the plaintiffs interposed a motion to strike the amended answer, which was sustained by the court and the instrument denominated as an amended answer was stricken. The cause was tried on the original answer and judgment rendered for the plaintiffs, to which judgment, and likewise to the order of the court striking the amendment, the defendants duly excepted, and...