Pond v. Huling
| Decision Date | 06 May 1907 |
| Parties | JOHN C. POND, Defendant in Error, v. GEORGE D. HULING, Plaintiff in Error |
| Court | Kansas Court of Appeals |
June 18, 1906;
Error to Jackson Circuit Court.--Hon. James H. Slover, Judge.
Albert Young for plaintiff in error.
(1) Plaintiff's reply to defendant's second amended answer is insufficient in every respect and contains only conclusions of law and thereby becomes an admission of the facts as set up in defendant's second amended answer. Our Supreme Court has especially held such answers bad, and that the defendant is in no case compelled to file a motion to make such answers more definite and certain or sufficient. Long v. Long, 79 Mo. 644; Snyder v. Free, 114 Mo. 360; Young v. Schofield, 132 Mo. 650; Bowles v. Bennington, 136 Mo. 522; Dezell v Fidelity and Casualty Co., 176 Mo. 279; R. S. 1899 secs. 607, 608. (2) Defendant's motion to strike out parts of plaintiff's reply was in effect a demurrer, and therefore a part of the record. Priest v. Way, 87 Mo. 16; State ex rel. v. Simmons Co., 109 Mo. 118. (3) Defendant's motion to strike out that part of plaintiff's reply wherein he alleged that defendant knew of the letting of the contract to the Bandera Flagstone Company, and knew of the progress of work, but failed to take any measures legally to stop the work, should have been sustained, for the reason that said alleged defense constituted no estoppel upon defendant. Perkinson v McGrath, 9 Mo.App. 26; Keane v. Klausman, 21 Mo.App. 485; Verdin v. St. Louis, 131 Mo. 99. (4) There is no proper plea of former adjudication in this cause. Plaintiff's plea is fatally defective and insufficient in every respect. It is a well settled principle that a former judgment does not constitute a bar of subsequent proceedings for the same cause of action, unless such judgment was rendered on the merits of the case, and the pleading must effectively show this fact. Therefore, a plea of former adjudication is fatally defective unless it alleges that the former judgment or decree was on the merits of the case. Griffin v. Wallace, 66 Ind. 418; Reed v. Higgins, 86 Ind. 147; Railroad v. McCammon, 108 Mich. 373; Columbus v. Watson, 26 Ind. 50; Riley v. Lyons, 58 Tenn. 251; McBurnie v. Seaton, 111 Ind. 56; Dunklee v. Godenough, 63 Vt. 459; Philip v. Spencer, 63 Tex. 604; Machine Co. v. Coal Co., 10 W.Va. 284; Knicker-bocker v. Ream, 42 Kan. 17; Jourolmon v. Massengill, 86 Tenn. 81; Baldwin v. Davidson, 139 Mo. 126. (5) Before a former judgment between the same parties or their privies can constitute res adjudicata it must be shown that the same matter was raised by the pleadings and passed upon by the court. Even though the same questions were set up or raised in the former case, yet if by the record or parol evidence, it appears that the merits of the matter in dispute were not passed upon, the judgment is not a bar. Baldwin v. Davidson, 139 Mo. 126; Wright v. Salisbury, 46 Mo. 29; Spradling v. Conway, 51 Mo. 54; Hickerson v. Mexico, 58 Mo. 65; St. Joseph v. Railway, 116 Mo. 643; Baker v. Lane, 137 Mo. 688; Sconce v. Long-Bell Co., 54 Mo.App. 512; Dawson v. Quillan, 61 Mo.App. 677.
Jere T. Drew for defendant in error.
(1) The real subject in controversy, the material and main issue to be settled in the case, Huling v. Bandera Flag Stone Co., the validity and lien of these two taxbills, constitutes the merits of the case--not each separate and distinct matter of evidence or point alleged to sustain or defeat the main issue. Donnell v. Wright, 147 Mo. 639; Hamilton v. McLean, 169 Mo. 73; State ex rel. v. St. Louis, 145 Mo. 551; Chouteau v. Gibson, 76 Mo. 38; Lyman v. Harvester Co., 68 Mo.App. 637; Railroad v. Levy, 17 Mo.App. 507; 1 Herman on Estoppel and Res Adjudicata, p. 548, sec. 457; Werlin v. New Orleans, 177 U.S. 391; New Orleans v. Bank, 167 U.S. 397; Cromwell v. County of Sac, 94 U.S. 351; Davis v. Brown, 94 U.S. 423; Aurora v. West, 7 Wall. 82; Building and Loan Ass'n v. Welling, 116 F. 105; Exposition Driving Park v. Kansas City, 174 Mo. 425. (2) Plaintiff in error is also wrong in his contention that the matters of res adjudicata and estoppel set up in the reply were not sufficiently pleaded. That it is defective in that it did not allege the judgment to have been on the merits. A pleading conforming substantially with the precedents given in the Missouri Statutes is held to be sufficient. R. S. 1899, form No. 36; 2 Lansing's Forms of Civil Procedure (New York Code), p. 902, form No. 1015; 2 Herman on Estop. and Res Adjudicata, p. 1419, sec. 1269; Strong v. Grant, 2 Mackey (D. C.) 218; Railroad v. New Orleans, 14 F. 373; Stearns v. Lawrence, 83 F. 738; Miles v. Strong, 68 Conn. 273. (3) The bar and estoppel was and is sufficient in substance and in form and constitutes a complete defense to defendant's answer. It was sufficiently pleaded and did not admit his defenses, nor entitle him to judgment. No traverse of the answer was necessary, when the new matter in the reply went to his entire answer; and, furthermore, he cannot be heard on that point, nor on the motion to strike out parts of the reply, for he waived all objections by filing his rejoinder and going to trial, and treated the traverse as sufficient. B. and L. Ass'n v. Obert, 169 Mo. 507; Ferguson v. Davidson, 147 Mo. 664; Gaty v. Clark, 28 Mo.App. 332; Nelson v. Wallace, 48 Mo.App. 193; Kortzendorfer v. St. Louis, 52 Mo. 204; Revised Statutes 1899, secs. 627, 672. (4) "A former decree in a suit in equity between the same parties, and for the same subject-matter, is also a good defense in equity, even although it be a decree merely dismissing the bill, if the dismissal is not expressed to be "without prejudice." Story's Eq. Jur. (10 Ed.), sec. 1523; Herman on Res Adjudicata and Est., sec. 403; Daniel's Chancery Practice (4 Ed.), p. 659; Coleman v. Dalton, 71 Mo.App. 14; Knowlton v. Hanbury, 117 Ill. 471; Tilley v. Bridges, 105 Ill. 336; Stickney v. Goudy, 132 Ill. 213; Taylor v. Yarborough, 13 Gratt. (Va.) 183; Gove v. Lyford, 44 N.H. 525; Foote v. Gibbs, 1 Gray (Mass.) 412; Bigelow v. Winsor, 1 Gray (Mass.) 299; Lewis v. Lewis, 106 Mass. 309; Blockington v. Blockington, 113 Mass. 231; Bledsoe v. Erwin, 33 La. Ann. 615; Adams v. Cameron, 40 Mich. 506; Pelton v. Mott, 11 Vert. 148; Case v. Beauregard, 101 U.S. 688; Durant v. Essex Company, 7 Wall. (U.S.) 107; Lyon v. Perin & Goff Mfg. Co., 125 U.S. 698; Tankersley v. Pettis, 71 Ala. 179; Strang v. Moog, 72 Ala. 460; Scully v. Railroad, 46 Iowa 528; Goodenow v. Litchfield, 59 Iowa 226.
The plaintiff's suit is to recover judgment on two special taxbills and to enforce a lien on certain real estate belonging to the defendant. The petition is in the usual form in such cases. The plaintiff is the assignee of the Bandera Flag Stone Company, the party that did the work. The work consisted in constructing natural stone sidewalks on both sides of Seventeenth street from the curb line on the west side of Broadway to the curb line on the east side of Pennsylvania avenue. The defendant's lots abutted on Seventeenth street.
The answer contains a general denial and certain specific defenses, viz.: First, that on the ___ day of November, 1897, the common council of Kansas City passed, and the mayor approved, a pretended ordinance, numbered 9002, under which plaintiff's taxbills were issued. Section three of which provided that, The answer then proceeded to allege that by section two, article 9, of the city charter, under which the taxbills were issued, it is provided that the common council shall have the power to improve the streets and sidewalks of the city . . . of such dimensions and with such materials, and in such manner and under such regulations as shall be prescribed by ordinance; that the common council failed to provide by ordinance for the construction of said sidewalks as the charter required, but on the contrary authorized the city engineer to prescribe the width of the stone to be laid as such sidewalk, as well as the distance of the same from the curb line; and that the said engineer did prescribe the width of the walk as well as its distance from the curb line. The second defense is, that the contract prohibited the contractor from requiring laborers employed in the work to labor more than eight hours a day as provided by ordinance, which defendant alleges was illegal.
The plaintiff replied to defendant's answer denying its allegations "excepting only as may be expressly admitted hereinafter." The reply among other matters sets up the plea of res adjudicata, viz.: That in October, 1898, the defendant instituted a suit in the circuit court of Jackson county for the purpose of obtaining a decree enjoining the collection of said taxbills, and to have them declared null and void, and cancelled, and the pretended cloud removed from his property. That on a trial of the cause, the finding and judgment were in favor of the said company, the then owners of the taxbills, and plaintiff's (defendant's) bill dismissed; that defendant herein appealed from the judgment of the said court to the Kansas City Court of Appeals wherein upon hearing the said judgment was affirmed in all respects.
The defendant moved to strike out all that the special matter set out in said reply, which was by the court overruled. A trial was had, which resulted in a judgment for plaintiff, to reverse which defendant sued out his writ of error. The facts set up in the plea of res...
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