Pitts v. Oliver

• Decision Date: 29 August 1900
• Citation: 83 N.W. 591,13 S.D. 561
• Parties: PITTS et al. v. OLIVER.
• Court: South Dakota Supreme Court

83 N.W. 591

13 S.D. 561

PITTS et al. v. OLIVER.

Supreme Court of South Dakota

August 29, 1900

Appeal from circuit court, Brule county; Frank B. Smith, Judge.

Action by G. W. Pitts and others, co-partners as the Bank of Iowa & Dakota, against John Oliver. From an order denying plaintiffs' motion to strike certain paragraphs from defendant's answer, they appeal. Reversed.

Wright & Huddle, for appellants. A. B. Kittredge, for respondent.

CORSON J.

This is an appeal from an order denying plaintiffs' motion to strike out paragraphs 4 and 6 from the defendant's answer. The action was brought by the plaintiffs to recover of the defendant damages for neglecting to take proper care of a flock of sheep which had been mortgaged to the plaintiffs and defendant, by which plaintiffs sustained damages to the amount of $851.10. The paragraphs sought to be stricken out from the answer are as follows: "(4) *** And this defendant alleges, as a bar to the cause of action set out by the plaintiffs in this suit, that in the action above described, then pending in said court between said parties, and for the same causes of action as those set forth in the complaint herein, findings of fact and conclusions of law were duly made and given, and thereon judgment was duly given and entered of record, as appears by said findings of fact, conclusions of law, and the rendition and entry of said judgment which was given to this plaintiff; and said judgment has not been reversed, and this plaintiff has not appealed therefrom. And this defendant further alleges that in said action between the parties aforesaid the court had jurisdiction over the subject-matter, as well as said parties, and the questions of fact were the same as in this action, and were necessary to its decision, and in fact were or might have been, litigated in said action, and were comprehended and involved therein, and all of said facts were well known to the plaintiff at all times, and said hearing and judgment were rendered upon the merits of the action. The defendant expressly denies each and every allegation in said paragraph No. 7 of plaintiffs' complaint, except as hereinbefore admitted or qualified." "(6) This defendant, for a further and separate defense to the plaintiffs' complaint herein, and as an estoppel repeating the admissions, denials, and allegations contained in paragraph 4 of this answer, alleges that among other things found by the court was that 'from April 6, 1895 to February 1, 1896, this defendant was guilty of negligence in feeding, caring for, and attending to said sheep, and as a result of such negligence the said flock of sheep was damaged, in losses of sheep and losses of increase and deterioration of the flock, in the sum of three hundred fifty dollars,' and that the court rendered judgment reducing this defendant's lien, which was superior to the lien of this plaintiff, to the extent of the said sum of three hundred fifty dollars, and that this plaintiff received benefit to that extent, and has acquiesced therein, by not appealing, and by receiving the amount left after satisfying this defendant's lien."

This is the third appeal to this court of this case, and the facts involved are stated in the decisions on the former appeals which are reported in Bank v. Price, 9 S. D. 582, 70 N.W. 836, and Id., 12 S.D. 184, 80 N.W. 195. It is stipulated by the parties that, in order to raise the questions presented, the defendant is not required to set out in full, or by exhibits, the record, files, proceedings, including the pleadings, findings of fact, conclusions of law, final judgment, or other papers, in the former case, but the same shall be deemed to be a part of the plea of res judicata by reference, and shall be looked to in determining said questions with like force and effect as though the same were set out in full in defendant's answer. In order that the questions presented by the defenses sought to be stricken out may be understood, a brief recapitulation of the facts and pleadings involved in the former suit will be made: In 1895 one Tidrick sold to M. M. Price a flock of 840 sheep. To make up the number, he purchased of Oliver 670 sheep. Price executed a chattel mortgage on these sheep to Tidrick to secure the amount of the purchase money, and Tidrick, to secure Oliver for the value of the sheep purchased of him, assigned to him notes executed by Price for about $2,300. Tidrick subsequently assigned the balance of the notes and the mortgage to the plaintiffs, but, by an agreement between the plaintiffs and Tidrick, Oliver's notes were to have priority over those of the plaintiffs in payment. The notes not being paid, the plaintiffs brought an action against Price to foreclose the chattel mortgage, making Oliver a party to the action. Oliver answered the complaint of the plaintiffs, also asking the foreclosure of the chattel mortgage, and claiming that his notes should be first paid out of the proceeds of the mortgaged property, and in his answer he set up a cross claim against Price for the care of the sheep for nearly two years. Price, in his answer to this cross claim, made a counterclaim against Oliver for damages for negligence in the care and keep of the sheep, of which sheep Oliver had wrongfully taken possession, by reason of which a large number of sheep had died. These issues between Oliver and Price were tried by the court, and resulted in a finding in favor of Oliver for $1,000 for the care and keep of the sheep, less $350 found in favor of Price for negligence in keeping the sheep. A judgment was thereupon entered for the sale of the mortgaged property, and $180 of the proceeds, after paying Oliver's claim, was paid over to the plaintiffs, leaving an unsettled balance of about $850, for which execution was issued against Price, and returned wholly unsatisfied. The action of the plaintiff was to recover the amount due upon the notes...