Murphy v. Creath

• Decision Date: 31 May 1887
• Citation: 26 Mo.App. 581
• Parties: T. M. MURPHY ET AL., Respondents, v. G. W. CREATH, Appellant.
• Court: Missouri Court of Appeals

26 Mo.App. 581

T. M. MURPHY ET AL., Respondents, v. G. W. CREATH, Appellant.

Court of Appeals of Missouri, St. Louis.

May 31, 1887

APPEAL from the St. Charles County Circuit Court, W. W. EDWARDS Judge.

Affirmed.

WILLIAM CARTER and C. D. YANCEY, for the appellant: The adjustment made by the parties of their controversy amounted to a full and complete retraxit at common law, which was uniformly held to be res adjudicata; the parties being personally present in court, at the time of the adjustment of the controversy, entered into the agreement themselves, and directed their attorneys to carry it out which was done. Wells Res Adjudicata, 383; Wohlford v. Compton, 79 Va. 333; 2 Bouvier Law Dict., Title, Retraxit, 588. No reasonable notice was given to the defendant by the plaintiffs of their intention to read such depositions on the trial of said cause, thus depriving him of all opportunity to examine said depositions, or to prepare to rebut the testimony contained in them. Samuel v. Withers, 16 Mo. 540-41; Cabanne v. Walker, 31 Mo. 285-86; Parsons v Parsons, 45 Mo. 267; Borders v. Barber, 81 Mo 643-44.

J. W. EMERSON, for the respondents: As there was no hearing, no judgment on the merits, there was no bar in this case. Gray v. Dougherty, 25 Cal. 266, 272, 273; Johnson v. White, 13 S. & M. 584; Greely v. Smith, 3 M. & W. 236; Louderbeck v. Collins, 4 Ohio (N. S.) 251. It is only when a point in issue is determined that the judgment is a bar. Greenl. Evid. sect. 529; Hull v. Blake, 13 Mass. 155. The dismissal by agreement had the same effect as if the plaintiff had been non-suited for failure to appear. Horner v. Brown, 16 Howard (U. S.) 354; Knox v. Waldborough, 5 Greenl. 185; Wilbur v. Gilmore, 21 Pick. 253; Halderman v. United States, 91 U.S. 584; Walhmos v. Gray, 73 Ill. 415; Cromwell v. Sac, 94 U.S. 351; Taylor v. Larkin, 12 Mo. 104; Bell v. Hoagland, 15 Mo. 363; Wells v. Moore, 49 Mo. 229; Ridgley v. Stilwell, 27 Mo. 128; Offut v. John, 8 Mo. 120; Clemens v. Murphy, 40 Mo. 121; Wright v. Salisberry, 46 Mo. 26; Looker v. Davis, 47 Mo. 140; Spradling v. Conway, 51 Mo. 53.

OPINION

ROMBAUER J.

This is an action upon an account for work and material, in which the plaintiffs recovered judgment for $456.55. The answer set up the following defences: (1) A general denial. (2) A statement that the improvements sued for were not made upon the defendant's request, but upon the request of the defendant's tenant, and formed no part of the realty between the defendant and his tenant. (3) Accord and satisfaction and former recovery.

The errors complained of by the defendant upon this appeal are: (1) That the court erred in its declarations of law concerning the effect of a certain judgment entry of dismissal, in a cause between the same parties, and involving the subject matter litigated in the present action. The defendant claims that such judgment entry operates by way of estoppel, as a former adjudication of the matters in controversy. (2) That the court erred in permitting the depositions of Watkins, Halfacre, and Randall to be read in evidence in this cause on behalf of the plaintiffs, such depositions not being competent evidence under any statutory provision, or under the stipulation signed by the parties, under which the plaintiffs claimed their admissibility. (3) That the court erred in its declaration of law touching the effect as evidence of two mechanic's lien suits, heretofore instituted by the same plaintiffs against the defendant and other parties. (4) That the court erred in admitting in evidence, against the defendant's objections, incompetent testimony, offered by the plaintiffs. (5) That the court erred in its declarations of law touching the effect of other evidence offered by the plaintiffs.

The cause was tried by the court, sitting as a jury, and the main contention between the parties, outside of the effect of the judgment entry hereinafter mentioned, was whether the work, sued for by the plaintiffs, was done at the instance and request of the defendant, or at the instance and request of the defendant's lessee.

I. A suit upon the same cause of action was originally instituted in the Wayne circuit court, and thence taken, by change of venue, to the circuit court of the city of St. La. While pending in the latter court, the parties filed the following stipulation therein:

" T. M. MURPHY et al. ) In Circuit Court,

VS. ) City St. Louis,

GEO. W. CREATH. ) February 23, 1886.

It is agreed by and between the parties in the above entitled cause, that the same be dismissed, and that each party shall pay all the costs by him incurred."

The judgment entered on it is in these words, omitting caption:

" On stipulation of parties this day filed, it is ordered by the court that this cause be dismissed, and that each party pay all costs by them incurred, and that execution issue therefor."

The defendant, in his answer, states that he has fully carried out all the conditions of this agreement, and pleads it both by way of accord and satisfaction, and by way of former recovery.

The defendant claims that the judgment entry is a bar to this action, being in the nature of a judgment by retraxit, or, at least, a judgment " " dismissed agreed," which is recognized as a bar in Kentucky and Virginia, and, also, it would seem, in California. Bank of Commonwealth v. Hopkins, 2 Dana 395; Wohlford v. Compton, 79 Va. 333; Merritt v. Campbell, 47 Cal. 542. It lacks some essential elements of a judgment by retraxit as that term is now understood. In Coffman v. Brown (7 Sm. & M.), it is said: " In a retraxit, the plaintiff voluntarily abandons his cause, and goes further, he admits that he has no cause of action. It is this admission upon the record, that he has no cause of action, which constitutes the bar, and operates as an estoppel to the party." So Mr. Wells, in his work on Res Judicata, p. 383, says: " The plea goes further than a mere non-suit, the plaintiff therein admits that he has no cause of action, and is held to his admission of record. And it is on this ground that, in Kentucky and Virginia, dismissing a suit agreed is usually regarded as a finality."

This rule, which treats dismissals by agreement as in the nature of a retraxit, has not met with favor in other states. In Halderman v. United States (91 U.S. 584), it is held that, " whatever may be the effect given by the courts of Kentucky to a judgment entry, ‘ dismissed agreed,’ it is manifest that the words do not, of themselves, import an agreement to terminate the controversy, nor imply an intention to merge the cause of action in the judgment. Suits are often dismissed by the parties, and a general entry is made to that effect, without incorporating the agreement. It may settle nothing, or it may settle the entire dispute. If the latter, there must be a proper statement to render it available as a bar. But the general entry of a dismissal of a suit by agreement is evidence of an intention not to abandon the claim on which it is founded, but to preserve the right to bring a new suit thereon, if it becomes necessary."

The great weight of authority in the United States, at the present day, unquestionably is, that a dismissal of a suit will not operate as a bar to a new action, unless it distinctly appears that the entry of dismissal was either made by the court, upon an examination of the merits, or that it was the result of a complete settlement between the parties, themselves, of the matters in controversy between them, and in either event such facts must be shown aliunde the record entry itself. Cromwell v. County of Sac, 94 U.S. 351; Chase case, 1 Bland Chy. 206; Estep v. Larsh, 21 Ind. 191; Wadham v. Gay, 73 Ill. 415, 435; New England Bank v. Lewis, 8 Pick. 118; 17 Serg. & R. 319, 326; Taylor v. Larkin, 12 Mo. 103; Bell v. Hoagland, 15 Mo. 363, 364; Clemens v. Murphy, 40 Mo. 121; Wright v. Salisbury, 46 Mo. 26; Spradling v. Conway, 51 Mo. 51, 54.

The record entry of dismissal in the former case, although accompanied with the further judgment as to costs, was not, of itself, a bar to this proceeding, and the court committed no error in giving the instructions asked by the plaintiffs, nor in refusing those asked by the defendant on that subject.

The testimony of the parties as to what transpired between them, immediately preceding the judgment entry of February 23, 1886, was conflicting. The defendant's testimony tended to show that the arrangement contemplated a complete and final settlement of the matters in controversy herein, and that he acted upon that understanding when he agreed to the payment of his share of the costs. The plaintiffs' testimony tended to show that they never contemplated an abandonment of their claim, that they were told that they could, and intended to, bring a new suit, whenever they pleased, unless the claim was settled outside of court, by compromise or otherwise. There was substantial testimony which would have required the court to submit the question to the jury, whether the agreement between the plaintiffs and the defendant, culminating in the entry of dismissal, amounted to an accord and satisfaction. The defendant, however, asked no instruction on that hypothesis, but, as above stated, required the court to declare that the record entry, of itself, amounted to evidence of a former adjudication, which declaration the court, under the law as above stated, and the evidence hereinabove detailed, properly refused.

II. Upon the trial, the plaintiff's attorney requested that the court lay over...