Prondzinski v. Garbutt

• Decision Date: 19 June 1901
• Court: North Dakota Supreme Court

86 N.W. 969

10 N.D. 300

MICHAEL PRONDZINSKI v. JAMES GARBUTT

Supreme Court of North Dakota

June 19, 1901

Appeal from District Court, Walsh County; Fisk, J.

Action by Michael Prondzinski against James Garbutt. Judgment for plaintiff, and defendant appeals.

Affirmed.

DePuy & DePuy and Templeton & Rex, for appellant.

The judgment in the first case is a bar to the present action. If plaintiff was entitled to recover in equity damages for alleged fraud of defendant in taking a sheriff's deed, he could and should have recovered such damages in that suit. Chapman v. Mad River Co., 6 O. St. 119; Holland v. Anderson, 38 Mo. 55; Hamilton v. Hamilton, 59 Mo. 232; Pinnock v. Clough, 16 Vt. 500, 42 Am Dec. 521; Aday v. Echols, 52 Am. Dec. 225; Robinson v. Braiden, 28 S.E. 798; Milkman v Ordway, 106 Mass. 232; Kelly v. Galbraith, 58 N.E. 431; Pomeroy Eq. Jur. § 1410. There is only the union of remedial rights flowing from one cause of action. Pom. Rem. 97; Sternberger v. McGovern, 56 N.Y. 12; Cole v. Getzinger, 71 N.W. 75; Hanna v Reeves, 60 P. 62; Gray v. Dougherty, 25 Cal 266. Whether proof was offered in the first case to show the damage plaintiff claims to have sustained is immaterial; the judgment is conclusive nevertheless. Thompson v. Myrick, 24 Minn. 4; Scottish Amer. Mortg. Co. v. Reeve, 7 N.D. 552; Foogman v. Patterson, 9 N.D. 254; Jungnitsch v. Iron Co., 80 N.W. 245; Werllen v. New Orleans, 177 U.S. 390, 44 L.Ed. 817; Roby v. Dock Co., 165 Ill. 277. There is a distinction between an estoppel by verdict and an estoppel by judgment. The estoppel by judgment is conclusive as to every matter that might have been presented and adjudicated in the first suit. Nilson v. Oil Co., 80 N.W. 859; New Orleans v. Bank, 167 U.S. 371; Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195; Boyd v. Wallace, 84 N.W. 760. The dismissal of the former action without prejudice was of no effect. Prondzinski v. Garbutt, 83 N.W. 23, 9 N.D. 239; Davenport v. Kleinschmidt, 20 P. 823; Chicago, Etc. Ry. Co. v. Black, 29 P. 96; Forgerson v. Smith, 104 Ind. 246; Nickless v. Pearson, 126 Ind. 477, 489; Lorillard v. Clyde, 122 N.Y. 41; Indiana Nat'l. Bank v. Bank, 36 N.E. 382; Franke v. Franke, 43 N.E. 468. The trial court, under the facts as they existed, had no authority to insert the words "without prejudice" in the order of dismissal. Chicago Etc. Ry. Co. v. Mill Co., 109 U.S. 702, 27 L.Ed. 1081; Casey v. Jordan, 9 P. 92; Lee v. Stahl, 22 P. 437. Plaintiff elected in the first suit to pursue the specific property and thereby foreclosed his right forever to avail himself of any other remedy. Rosenbaum v. Hayes, 8 N.D. 461, 79 N.W. 987; Washburn v. Ry. Co., 114 Mass. 175; Bailey v. Hervey, 135 Mass. 172; Ormsby v. Dearborn, 116 Mass. 386; Brunswick Co. v. Dart, 20 S.E. 631; Carroll v. Fethers, 78 N.W. 604. Prior to the expiration of the period of redemption, plaintiff offered to pay the defendant an amount sufficient to redeem from the foreclosure sale. This offer wiped out the lien and destroyed entirely the force of the sale. § 1716, Civil Code; Tiffany v. St. John, 65 N.Y. 314; Loughborough v. McNevin, 14 P. 369. After the sale defendant by virtue of his certificate held only a lien. Meeker County Bank v. Young, 51 Minn. 254, 53 N.W. 630; Jones on Mtgs., § 1661. The effect of the sale having been nullified by the offer on plaintiff's part to pay the defendant, the sheriff's deed was absolutely void and plaintiff could have recovered the property notwithstanding the transfer. Dodge v. Brewer, 31 Mich. 227; Frost v. Bank, 70 N.Y. 553; Clute v. Emmerich, 99 N.Y. 342; Benton v. Hatch, 122 N.Y. 322. If Joseph Garbutt was a necessary party to the first action the court was required to bring him in. § § 5297, 5230, 5238, Rev. Codes; Osterhoudt v. Supervisors, 98 N.Y. 239. Chapman v. Forbes, 123 N.Y. 532; Derham v. Lee, 87 N.Y. 599. The value of the land cannot be recovered on the theory that defendant was plaintiff's trustee. Booth v. Thompson, 49 Mich. 72, 13 N.W. 363; Jeffery v. Robbins, 167 Ill. 375; Newell v. Meyendorff, 23 P. 333; Moorman v. Wood, 117 Ind. 144. The District Court erred in allowing plaintiff interest on the difference between the value of the land and the amount of the foreclosure sale. § § 4974, 4975, 4273, Rev. Codes; Johnson v. Ry. Co., 1 N.D. 354, 365; Lell v. N. P. Ry. Co., I N.D. 336, 353.

J. H. Fraine and Cochrane & Corliss, for respondent.

The object of the present action is to compel the defendant to account to plaintiff for the value of the real estate described in the complaint. The foundation of plaintiff's claim is a sale by defendant to a third person of this property when, in fact, the defendant held the same as trustee for the plaintiff, subject to the payment by plaintiff to defendant of the sum of $ 731.35. The judgment in the first action was not a bar because the cause of action in the first suit was not the same upon which plaintiff seeks to recover in this, and the complaint in the first suit did not state a cause of action. The naked allegation of fraud therein, without the averment of any facts to sustain the allegation, was a nullity. Gould v. Ry. Co., 91 U.S 526; Gilmer v. Morris, 30 F. 481; Rodman v. Ry. Co., 26 N.W. 651; Morrill v. Morgan, 4 P. 580; State v. Mellus, 59 Cal. 444; Terry v. Hammond, 47 Cal. 32; O'Hara v. Parker, 39 P. 1004; 1 Black on Judgmts., § 707. Where the second action is not based on the same claim as the first, plaintiff is not concluded by an adverse judgment as to any questions except such questions as were actually litigated and decided against him in the first suit. Cromwell v. County, 94 U.S. 351, Wentworth v. County, 74 N.W. 552; Jones v. Hillis, 100 F. 355. The original judgment entered in the action has been set aside and disappears from the case. The second judgment entered by the court in the first action recites that the judgment was entered upon the sole ground that the defendant had put it out of his power to give a deed of the property, and declares that the judgment is without prejudice to the right of plaintiff to litigate in a proper action the other questions in the case, such questions having not been litigated and decided in this case. Therefore the judgment is no bar. Wanzer v. Self, 30 O. St. 378. Whenever a decree or judgment in equity is declared to be without prejudice the judgment is not a bar to another action on the same claim. Hazen v. Bank, 41 At. Rep. 1047; O'Keefe v. Company, 39 At. Rep. 428; Wolfe v. Potts, 42 S.W. 188; Long v. Long, 44 S.W. 341; 1 Van Fleet Form. Adj. § 45; 2 Black Judgmts., § 721; Ulrich v. Drischell, 88 Ind. 354, 363; Epstein v. Ferst, 17 So. Rep. 414. A judgment, when it is used as a bar, cannot be explained or contradicted by the opinion of the court pronouncing the same. Citizens' Bank v. Brigham, 60 P. 754; Buckingham's Appeal, 22 At. Rep. 509; Harmon v. Auditor, 13 N.E. 161; Chaffee v. Morgan, 30 La.Ann. 1307; Penouilah v. Abraham, 9 So. Rep. 36, 15 Enc. Pl. & Pr. 309; 1 Herman on Estop. 470; Martin v. Evans, 36 At. Rep. 258; State v. Krug, 94 Ind. 366; Ry. Co. v. New Orleans, 14 F. 373; In re Broderick, 56 N.Y.S. 99; Morske v. Williard, 48 N.E. 290; Kalumet Ry. Co. v. Van Pelt, 50 N.E. 678. Appellate courts have not, in general, the power to review their own decisions after the time for rehearing has expired. 2 Enc. Pl. & Pr. 373. Expressions of opinion as to matters beyond the scope of the case do not, in any sense, constitute the law of the case. 2 Enc. Pl. & Pr. 381; Barney v. Ry. Co. 117 U.S. 228; Findlay v. Trigg, 83 Va. 539; Forgenson v. Smith, 104 Ind. 246; Dilworth v. Curtis, 139 Ill. 508. It is the general practice in this country, when a bill in equity is dismissed without a consideration of the merits, for the court to express in its decree that the dismissal is without prejudice. The omission of the qualification in a proper case will be corrected on appeal. Durant v. Essex County, 7 Wall. 107; 2 Beach Eq. Prac., § 643; Barney v. Baltimore, 6 Wall. 280; Bodkin v. Arnold, 30 S.E. 154; Mitchell v. Dowell, 105 U.S. 430; Evans v. Schafer, 86 Ind. 135; Long v. Long, 44 S.W. 341; Thorne v. Phares, 14 S.E. 399; Ulrich v. Drischell, 88 Ind. 354; Gunn v. Peakes, 36 Minn. 177; Ry. Co. v. Township, 28 N.E. 439; Wanzer v. Self, 30 O. St. 378; Epstein v. Ferst, 17 So. Rep. 414; 2 Black Judgmts., § 721. Even if the saving clause were not in the judgment, and if the complaint in the first action showed that plaintiff therein relied upon the redemption agreement as the foundation of his claim, still, the former judgment would not be a bar. Cromwell v. Sac Conuty, 96 U.S. 681; Freeman on Judgmts., § 265; Sager v. Blaine, 44 N.Y. 445; 2 Van Fleet Form Adj. 444; 2 Black on Judgmts., § 715. Plaintiff's cause of action in the present case is the wrong of the defendant in deeding away trust property to which plaintiff had in equity a claim. This is entirely distinct from the cause of action he had against defendant previous to such transfer to compel him to convey the land to him on being paid the sum already specified. Rogers v. Barnes, 47 N.E. 602; Bonker v. Charlesworth, 33 Mich. 81; Wright v. Anderson, 20 N.E. 277; Elgin Watch Co. v. Myer, 29 F. 225; Gwinn v. Smur, 49 Mo.App. 361; 2 Van Fleet Form Adj., 886; 2 Dan. Ch. Prac. 995, Note 2; Snyder v. McComb, 39 F. 292; Ballantyne v. Appleton, 20 At. Rep. 234; Bank v. Harding, 53 N.W. 99; Gall v. Gall, 45 N.Y.S. 248; Marsh v. Masterton, 101 N.Y. 401, Ferguson v. Ins. Co., 22 Hun. 320; Mussey v. Bates, 27 At. Rep. 167; Porter v. Wagner, 36 O. St. 461; Prayette v. Ferrier, 55 P. 629; Dixon v. Merritt, 21 Minn. 196; Smith v. Auld, 1 P. 626; Lyons v. Robbins, 45 Conn. 513, 524; Smith v. Rountree, 56 N.E. 1130; Rease v. Dobson 13 S.E. 530. Even if a case has been tried and submitted and decided on the merits a...