McHenry v. Hubbard

• Decision Date: 06 March 1943
• Docket Number: 35440,35779.
• Citation: 156 Kan. 415,134 P.2d 1107
• Parties: McHENRY v. HUBBARD.
• Court: Kansas Supreme Court

134 P.2d 1107

156 Kan. 415

McHENRY v. HUBBARD.

Nos. 35440, 35779.

Supreme Court of Kansas

March 6, 1943

Rehearing Denied April 17, 1943.

Syllabus by the Court.

A statute adopted from another state carries with it the construction placed upon it by courts of that state.

Where statute is not peculiar to state from which it was adopted and other states have substantially the same statutes, which their respective courts have construed differently, where construction placed upon it by state from which it was adopted is opposed to weight of reason and authority, such construction will not be followed.

An action in forcible entry and detainer is a "civil action" notwithstanding statute contains language usual to criminal proceeding. Gen.St.1935, 61-1310.

The statute providing that judgments in forcible entry and detainer actions shall not be a bar to any after action brought by either party refers to a distinct action by either party involving changed state of facts, and does not prevent a defendant in second action from setting up as a defense that questions of right of possession and of amount of rent due involved in second action are based upon identical facts involved in first action and that judgment thereon is "res judicata". Gen.St.1935, 61-1303.

A tenant defeated in action for forcible detainer and for rents could not maintain action in district court to enjoin enforcement of judgment in first action where pleadings disclosed that on trial of second action same facts would be litigated as were involved in first action. Gen.St.1935 61-1303, 61-1310.

1. The provision of the code of civil procedure before justices of the peace in proceedings in forcible entry and detainer that "Judgments either before a justice or in the district court in actions brought under this article, shall not be a bar to any after action brought by either party" (G S.1935, 61-1303), examined and considered, and held, that the bar mentioned refers to another and distinct action by either party involving a changed state of facts, and does not prevent a defendant in a second action from setting up as a defense that the questions of right of possession and of the amount of rents due involved in the second action are based upon the identical facts involved in the first action, and that the judgment thereon is res judicata.

2. The record in the case at bar examined, and held, that a party defeated in an action for forcible detainer and for rents may not maintain an action in the district court to enjoin enforcement of the judgment in the first action, where it appears from the pleadings filed that on trial of the second action the same facts would be litigated as were involved in the first action.

Appeal from District Court, Shawnee County, Division No. 3; Dean McElhenny, Judge.

Action by Charles I. McHenry against Mrs. Effie Hubbard for a restraining order and, on hearing, for an injunction to restrain defendant from interfering with plaintiff's possession of property rented from defendant. From a judgment for defendant, plaintiff appeals.

C. J. Evans, of Topeka, for appellant.

Mark L. Bennett, of Topeka (John S. Dean, Jr., of Topeka, on the brief), for appellee.

THIELE Justice.

The question in this appeal is the force and effect to be given G.S.1935, 61-1303, which provides that judgments in forcible detainer actions shall not be a bar to any after action brought by either party. As a lease and pleadings in two actions are involved, hereafter we shall refer to the parties by their surnames.

McHenry commenced his action in the district court, docketed as No. 59,022, on October 2, 1941, and on Ooctober 13, 1941, he filed an amended petition in which he alleged that on February 15, 1940, Hubbard, owner of certain real estate in Topeka, leased the same to him under written lease, a copy being made a part of the amended petition. Briefly stated, the lease was for three years and provided that McHenry was to make certain repairs on specified parts of the leased premises; and that he would furnish the labor and material therefor, and that Hubbard would credit him with the first year's rent therefor, the rent thereafter to be $25 per month. It was further agreed the house would need a new roof and that McHenry would put new roofing on when needed, the price fixed being dependent on Hubbard's choice of type of roofing, and that he was to be given credit on his second year's rent for the cost. It was further alleged that in March, 1940, McHenry did construct the roof, the cost of labor and material being $168, and that Hubbard was indebted to him therefor, which under the lease was to be applied on the second year's rent. The petition also contained eight other causes of action (Nos. 2 to 9, inc.) alleging, in substance, that by virtue of oral contracts with Hubbard, he had expended the following:

Action 2. Repairing gutters $ 30.00

' 3. Replacing window shades 50.00

' 4. Repairing plumbing 50.00

' 5. Alterations in walls 65.00

' 6. Replacing screens 50.00

' 7. Repairing cement walk 25.00

' 8. Repairs to wiring 190.00

' 9. Carpenter work 28.50

Summarizing, McHenry alleged that Hubbard breached her obligations in the lease and subsequent agreements and failed to give him credit on the rent and that he was entitled to keep possession until the amount due him in the sum of $625 was credited to him as rent at the rate of $25 per month. He further alleged that Hubbard had breached the contract in that she caused execution to issue from the Court of Topeka in case No. 58,882, and if permitted to be executed he would be deprived of and would lose the fruits of his labor and material; that Hubbard was execution proof and he would suffer irreparable injury, and that on account of the foregoing he was entitled to have an order restraining Hubbard, and the marshal of the Court of Topeka, who had been made a party defendant, from interfering with his possession. His prayer was for a restraining order, and on hearing for an injunction.

Hubbard filed an answer containing a general denial, and alleging that on August 2, 1941, she filed an action, docketed as case No. 54,052, in the Court of Topeka, for possession of the real estate and that McHenry filed an answer and cross-petition alleging the same matters set forth in the amended petition in the present action, and on hearing that court entered judgment in favor of Hubbard; that McHenry attempted to appeal to the district court where the case was docketed as No. 58,882; that Hubbard moved to dismiss the appeal for the reason the bond was defective, the motion being sustained. Copies of all pleadings and orders referred to were made part of the answer, which further alleged that all matters raised in the instant case had been fully settled and determined in the Court of Topeka. We shall not detail proceedings in the Court of Topeka further than to say the complaint in forcible detainer charged that McHenry, under the lease, was in arrears of rent for five months; that requisite proceedings had been had and Hubbard was and since March 1, 1941, had been entitled to possession of the leased premises. Hubbard prayed judgment for $125 and costs and for possession. McHenry's answer, among other things, claimed credit for $168 for roof repairs, $50 for window shades, $50 for screens, $50 for plumbing repairs, and for other work the sum of $--. He also claimed credit for $27.50 for carpenter work done on other property of Hubbard. He alleged that by reason of the above there was no rent due, but that he had made payments sufficient to pay all rents due and for some months in the future. The journal entry of judgment in the Court of Topeka shows that a trial was had and judgment was rendered for Hubbard against McHenry for $150 and costs and for possession. McHenry's notice of appeal and his appeal bond need not be reviewed. On September 29, 1941, both parties appeared in the district court on Hubbard's motion to dismiss McHenry's appeal. That court sustained the motion.

To this answer McHenry filed a reply consisting of a general denial.

Thereafter Hubbard filed a motion alleging the reply raised no issue of fact and failed to state any fact to controvert the allegations of Hubbard's answer; that matters pleaded in her answer are matters of public record, and a part of the records of the district court, and as such show the truth of her answer, which is a complete defense to McHenry's petition, and that the pleadings show on their face that Hubbard is entitled to judgment for which she moved. The trial court heard this motion and sustained it, and McHenry appeals.

Generally, the question presented by this appeal is the conclusiveness of the judgment of the Court of Topeka. Under G. S.1935, 20-1902, that court has the same jurisdiction as justices of the peace; therefore we direct our attention to the code of civil procedure before justices of the peace.

For present purposes, it is noted that the territorial legislature adopted a code of civil procedure before justices of the peace, providing for actions in forcible detainer and further: "That judgments, either before the justices or in the court of probate, under this article, shall not be a bar to any after action brought by either party." Laws 1858, Ch. 42, § 127.

In 1859 this code, with minor changes, was re-enacted, the principal change in the above section being to substitute "in the district court" for "in the court of probate" and "under this head" for "under this article". Laws 1859, Ch. 87,§ 119. In 1868 our statutes were generally revised. Under G.S.1868, Ch. 81,§ 158 et seq. provision was made for civil procedure before justices of the peace in actions in forcible entry and detainer. The section now under...