McDowell v. Gibson

• Decision Date: 06 November 1897
• Docket Number: 9949
• Citation: 58 Kan. 607,50 P. 870
• Parties: S. S. MCDOWELL v. O. S. GIBSON
• Court: Kansas Supreme Court

50 P. 870

58 Kan. 607

S. S. MCDOWELL v. O. S. GIBSON

No. 9949

Supreme Court of Kansas

November 6, 1897

Decided January, 1897.

Error from Cowley District Court. Hon. M. G. Troup, Judge.

Judgment affirmed.

Chas L. Brown, for plaintiff in error.

C. T Atkinson, for defendant in error.

OPINION

DOSTER, C. J.

E. L McDowell executed to S. S. McDowell, the plaintiff in error, a chattel mortgage upon the whole of his stock of jewelry. The First National Bank of Cleveland, Ohio, a creditor of E. L. McDowell, procured the levy of an attachment upon a portion of the mortgaged property. The writ was issued to O. S. Gibson, the defendant in error, as sheriff, and was executed by him. Soon thereafter, R. E. Burdick, another creditor of E. L. McDowell, procured the issuance of another attachment, and its levy upon the remainder of the stock of jewelry. The writ in this case was likewise issued to and executed by the defendant in error, O. S. Gibson, as sheriff. Two replevin actions were thereafter instituted by S. S. McDowell against O. S. Gibson; one to recover from him the portion of the stock attached at the suit of the First National Bank, the other, to recover the portion attached at the suit of Burdick. In both cases the plaintiff claimed in virtue solely of the chattel mortgage held by him. In the one brought to recover the portion of the stock attached by the bank, a trial upon the merits was had, resulting in a final judgment in favor of the defendant, Gibson. The case brought to recover the portion of the stock attached by Burdick is the one now for consideration. In the court below, the defendant Gibson pleaded the former judgment rendered in his favor in the action to recover the other portion of the jewelry stock, in bar of the suit to recover the remainder. The court held such former judgment to be conclusive in the latter action; and the sole question for consideration is whether such is the law.

It is said that to sustain a plea of res judicata there must be a concurrence of four conditions: "First, identity in the thing sued for; second, identity of the cause of action; third, identity of persons and parties to the action; fourth, identity of the quality in the persons for or against whom the claim is made." A. T. & S. F. Rld. Co. v. Comm'rs of Jefferson Co., 12 Kan. 127; Benz v. Hines, 3 id. 390. While the above is the usual form of statement of the law upon the subject, to the writer's mind, that of the Supreme Court of the United States is preferable, because dispensing with unnecessary and sometimes misleading subdivisions. According to the view of that court, the requisites to a judgment estoppel are: First, that the court have jurisdiction; second, that it be between the same parties; third, that it be for the same purpose. Aspden v. Nixon, 4 How. 467-497, 11 L.Ed. 1059. In Massachusetts, to ascertain whether a judgment is a bar, the courts inquire: First, whether the subject-matter in controversy has been brought within the issues of a former proceeding, and has terminated in a judgment on the merits; second, whether the former suit was between the same parties, in the same right or capacity, or their privies claiming under them. Bigelow v. Winsor, 1 Gray 299, 302. Mr. Justice Brewer, who, in A. T. & S. F. Rld. Co. v. Comm'rs of Jefferson Co., supra, had noted the several parts of a judgment estoppel, in the later case of Smith v. Auld (31 Kan. 262, 1 P. 626) reduced the separable conditions of the estoppel to a point quite near unity, when he remarked: "The whole philosophy of the doctrine of res adjudicata is summed up in the simple statement that a matter once decided is finally decided; and all the learning that has been bestowed and all the rules that have been laid down, have been for the purpose of enforcing that one proposition."

The plaintiff in error,...