Parsons v. Town of New Canada

• Decision Date: 03 January 1941
• Docket Number: No. 32561.,No. 32573.,32561.,32573.
• Citation: 295 N.W. 909,209 Minn. 132
• Parties: PARSONS v. TOWN OF NEW CANADA et al.
• Court: Minnesota Supreme Court

295 N.W. 909

209 Minn. 132

PARSONS v. TOWN OF NEW CANADA et al.

No. 32561.

No. 32573.

Supreme Court of Minnesota.

January 3, 1941.

Rehearing Denied January 30, 1941.

Appeal from District Court, Ramsey County; Gustavus Loevinger and Kenneth G. Brill, Judges.

Action by Oscar V. Parsons against the Town of New Canada, Lewis Zuercher and others, members of the Town Board of New Canada, and the County of Ramsey, wherein plaintiff sought damages against the county for breach of its agreement to convey strip of land to plaintiff and against defendant town and its officers for trespass. From an order denying plaintiff's motion for a new trial against defendant county, the plaintiff appeals, and from order refusing to require plaintiff to file an amended complaint omitting allegations applying to defendant county, the defendant town and its omcers appeal.

Order in accordance with opinion.

Humphrey Barton and A. E. Parsons, both of St. Paul, for appellant.

James F. Lynch, Co. Atty., and Andrew R. Bratter, Asst. Co. Atty., both of St. Paul, for respondents.

GALLAGHER, Chief Justice.

This case is a companion of No. 32556 (Parsons v. Town of New Canada et al., 295 N.W. 907) wherein another property owner has sued the same defendants on a similar cause of action. The county of Ramsey and the town of New Canada and its officers separately demurred to the complaint on the ground that the allegations stated therein do not constitute a cause of action. Both demurrers were overruled. Defendants answered and plaintiff replied to each answer. Thereafter defendants separately moved for judgment on the pleadings. The trial court granted the motion of the county of Ramsey and denied the motion of the other defendants. Plaintiff appealed from an order denying his motion for a new trial against the county.

It is the contention of the plaintiff that the action of the trial court in overruling the county's demurrer to his complaint was in effect a binding adjudication that the complaint stated a cause of action. The law is, however, that even though the relief asked in the motion for judgment on the pleadings is predicated upon the same fault as was the demurrer, still an order overruling the demurrer is not res judicata barring the motion for judgment. 5 Dunnell, Minn.Dig., 2d Ed. & 1934 Supp., § 7562. In Disbrow v. Creamery Package Mfg. Co., 110 Minn. 237, at page 243, 244, 125 N.W. 115, the court said: "If the original complaint had been sustained, the defendant could still have claimed that it failed to state a cause of action, by a ...