Shields v. Johnson

• Decision Date: 24 May 1906
• Citation: 12 Idaho 329,85 P. 972
• Parties: M. J. SHIELDS, Plaintiff and Respondent, v. FRANK M. JOHNSON and FRANK FRAZIER, Defendants and Appellants
• Court: Idaho Supreme Court

85 P. 972

12 Idaho 329

M. J. SHIELDS, Plaintiff and Respondent, v. FRANK M. JOHNSON and FRANK FRAZIER, Defendants and Appellants

Supreme Court of Idaho

May 24, 1906

MOTION FOR NONSUIT SHOULD BE SUSTAINED WHEN-WHEN MOTION FOR A NONSUIT IS WAIVED.

1. If it is shown by the record that the demand for damages should under the statute, have been litigated in a former action between the same parties, a motion for a nonsuit on that ground should be sustained.

2. Where it is shown that a motion for a nonsuit is interposed at the close of plaintiff's evidence on the ground that the subject matter of the action could have been litigated in a former suit, between the same parties, and after such motion is denied the defendant submits evidence in support of his defense, he waives his motion for a nonsuit, and must accept the verdict of the jury, unless he renews such motion at the close of all the evidence.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District for Latah County. Hon. Edgar C. Steele, Judge.

Plaintiff sues for damages and verdict rendered in his favor. Defendant appeals from the order overruling a motion for a nonsuit and the judgment. Judgment affirmed.

Judgment affirmed with costs to respondent.

George S. Pickett and S. S. Denning, for Appellants.

A party will not be permitted to bring his action to quiet title against a defendant and allege damages, then upon the trial of the cause dismiss his damage, and immediately thereafter file another action for damages and injunction. As the former case is res adjudicata, the party will be estopped from bringing a second cause of action in any matter that could be litigated in the former action. (Murphy v. Russell, 8 Idaho 151, 67 P. 427; Bean v. Givens, 5 Idaho 774 51 P. 987; Stevens v. Home etc. Assn., 5 Idaho 741 51 P. 779, 986; Chemung Min. Co. v. Hanley, 11 Idaho 302, 81 P. 619; Hanley v. Beatty, 117 F. 59, 54 C. C. A. 445; Empire State etc. Min. Co. v. Hanley, 136 F. 99, 69 C. C. A. 87; Shields v. Johnson, 10 Idaho 476, 79 P. 391.)

The defendant, although he takes the chance of aiding the plaintiff's cause by putting in his own evidence, does not waive his objection to the action of the court, in overruling the demurrer to plaintiff's evidence. (Weber v. Kansas City Cable R. R. Co., 100 Mo. 194, 18 Am. St. Rep. 541, 12 S.W. 804, 13 S.W. 587, 7 L. R. A. 819; Alpers v. Hunt, 86 Cal. 78, 21 Am. St. Rep. 17, 24 P. 846, 9 L. R. A. 483; Vinson v. Los Angeles P. R. R. Co., 147 Cal. 479, 82 P. 53.)

Forney & Moore, for Respondent.

Motion for nonsuit on account of insufficiency of evidence is waived by the subsequent introduction of testimony by the mover. (Chamberlain v. Wooden, 2 Idaho 644, 23 P. 177; Bradley v. Poole, 98 Mass. 169, 93 Am. Dec. 144; Railway Co. v. Cummings, 106 U.S. 700, 27 L.Ed. 266, 1 S.Ct. 493; Insurance Co. v. Crandall, 120 U.S. 530, 30 L.Ed. 740, 7 S.Ct. 685; Bogk v. Gassell, 149 U.S. 17, 37 L.Ed. 631, 13 S.Ct. 738; Northern P. R. Co. v. Mares, 123 U.S. 710, 31 L.Ed. 296, 8 S.Ct. 321; Union Ins. Co. v. Smith, 124 U.S. 405, 31 L.Ed. 497, 8 S.Ct. 534; Columbia & P. S. Ry. Co. v. Hawthorne, 144 U.S. 202, 36 L.Ed. 405, 12 S.Ct. 591.)

STOCKSLAGER, C. J., SULLIVAN, J. Ailshie, J., Sullivan, J., and Stockslager, C. J., concurring.

OPINION

STOCKSLAGER, C. J.

For a statement of the entire history of this case and some of the facts important here, see Shields v. Johnson, 10 Idaho 476, 79 P. 391; also, 10 Idaho 454, 79 P. 394. It will be observed by a reference to these two decisions that the parties to this litigation have not been idle so far as the courts are concerned since their first business acquaintance out of which the cause now before us has ripened. It is correctly stated by learned counsel for appellants that the first action was commenced in the district court of Latah county on the twenty-fourth day of April, 1904, by respondent as plaintiff and against appellants as defendants, to quiet title to certain real estate described in his complaint, and in addition to his demand that the title and right of possession of such real estate be quieted in him, that he have damages in the sum of $ 500 against the defendants, and each of them, as a second cause of action. It is shown by the record in Shields v. Johnson, supra, that at the time of the trial the question of damages was waived by plaintiff with the consent of defendants, and all allegations in the complaint as to damages were eliminated therefrom. It seems the case was tried on the third day of August, 1904. On the eighteenth day of July, 1904, respondent commenced this action alleging damages in the sum of $ 2,000. The fourth allegation is: "That during the summer season of 1904 there was growing upon said lands and premises one hundred and twenty acres of tame grass known as Bromus Innermis, and also forty acres of alfalfa, which the plaintiff had theretofore at great cost and expense sown upon said premises for the purpose of harvesting the same for seed, and that said crop of grass so grown upon said premises was valuable for seed." The fifth allegation is: "That about March or April, A. D. 1904, while this plaintiff was entitled to the possession, and was in the possession of said premises, the said defendants went thereon and plowed up about fifty acres of said land sown with Bromus Innermis as above set forth, and sowed thereon a crop of oats, and also plowed up the forty acres of land sown to alfalfa, all of which acts and things were done without the knowledge or consent of this plaintiff."

The sixth allegation is: "That on or about July 11, 1904, without plaintiff's knowledge or consent, the said defendants entered upon said premises and cut down about forty acres of said grass sown as above alleged, by this plaintiff, and known as Bromus Innermis. That all the acts and things done by the said defendants as above set forth were done without the knowledge or consent of this plaintiff, and by said acts upon the part of the said defendants this plaintiff has been damaged in the sum of $ 2,000." Then follows an allegation of the insolvency of the defendants; that they are unable to respond in damages, and unless enjoined and restrained, will cut and remove the balance of the Bromus Innermis and otherwise damage plaintiff. The prayer of the complaint is that plaintiff have judgment for $ 2,000 damages; that defendants be restrained and enjoined from further acts of waste and for costs.

Appellants applied to the court for an order dissolving the temporary restraining order issued by the court on the complaint and prayer of plaintiff. The application was denied and an appeal from the order was prosecuted in this court and the action of the lower court affirmed. (Shields v. Johnson, 10 Idaho 454, 79 P. 394.)

In May 1905, the question of damages was tried and the jury returned a verdict in favor of the plaintiff for the sum of $ 275, for which amount judgment was entered in favor of the plaintiff. At the close of plaintiff's evidence appellant's counsel made the following motion: "Comes now the defendant and moves the court to peremptorily instruct the jury to bring in a verdict for the defendant, or to order a nonsuit upon the ground that the evidence of the plaintiff himself shows that he is estopped from maintaining this action." This motion was overruled, which ruling is assigned as error, and the only assignment in the record. Counsel for appellants in their brief say: "Can a party bring an action to quiet title with one of his causes of action alleging $ 500 damages for trespass and wrongful holding, and then before the action is tried dismiss his right to damages and immediately turn round and file another action claiming damages and injunction?" An answer to this question disposes of this case, as it is the only question brought here for consideration, unless the contention of counsel for respondent that when appellant introduced his evidence after the court had denied their motion for nonsuit, they thereby waived their motion; or that the motion of appellants is too indefinite and uncertain, not specifying wherein and by what acts the respondent was estopped from maintaining his action, shall be accepted as the law of this case. The law does not encourage a multiplicity of suits. Subdivision 1 of section 4184, Revised Statutes, referring to a counterclaim, provides: "A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action." We do not understand from respondent's brief that he questions the requirements of this statute. It has been construed a number of times by this court. (Beane v. Givens, 5 Idaho 774, 51 P. 987; Stevens v. Home Savings & Loan Assn., 5 Idaho 741, 51 P. 779, 986; Murphy v. Russell, 8 Idaho 151, 67 P. 427.) If the cause of action for damages existed at the time the plaintiff commenced his original suit, the statute required him to plead it, and when he dismissed his second cause of action alleging $ 500 damages for waste, he is...