Slater v. Skirving

• Decision Date: 17 March 1897
• Citation: 51 Neb. 108,70 N.W. 493
• Parties: SLATER ET AL. v. SKIRVING ET AL.
• Court: Nebraska Supreme Court

51 Neb. 108

70 N.W. 493

SLATER ET AL.

v.SKIRVING ET AL.

Supreme Court of Nebraska.

March 17, 1897.

Syllabus by the Court.

1. There is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action upon a different claim or cause of action. In the former case a judgment on the merits constitutes an absolute bar to a subsequent action, not only as to every matter offered and received to sustain or defeat the claim, but as to any other admissible matter which might have been offered for that purpose. But, where the second action is upon a different claim or demand, a judgment in the prior action operates as an estoppel only as to those matters in issue upon the determination of which the finding or verdict was rendered. Cromwell v. County of Sac, 94 U. S. 351, followed.

2. Where the record leaves it uncertain as to what issues were adjudicated, extrinsic evidence is admissible in another action for a different object to show on what issue or issues the first case was determined. But extrinsic evidence is not admissible to contradict the record.

3. A party may not present issues for determination, and avoid the effect of an estoppel by withholding proof thereof.

4. Therefore, where a plaintiff alleges several facts, the proof of any one of which entitles him to judgment, and there is a general finding against him, it will be conclusively presumed that each fact so averred was determined against him.

5. Judgment by default was rendered against A. and others. At a subsequent term, they filed a petition, under section 602, to vacate the judgment, on the ground that it had been irregularly obtained, that the petition stated no cause of action, and that it had been procured through a fraud upon the jurisdiction of the court. This petition was dismissed, on a general finding against petitioners. They then brought an original action to enjoin against the enforcement of the judgment, on the ground that it was void, alleging the same matters. Held that, each of the matters pleaded in the former proceeding being pertinent to such a proceeding, the judgment in that case made them res judicata here.

6. Where a defendant is in default, the allegations of the petition are to be taken as true against him, except allegations of value and amount of damage; and, if the petition states a cause of action, the plaintiff is entitled to judgment, without proof except as to the quantum of damages.

Appeal from district court, Holt county; Kinkaid, Judge.

Action by A. B. Slater and others against James Skirving and others for injunction. From a decree for defendants, plaintiffs appeal. Affirmed.H. M. Uttley and W. S. Summers, for appellants.

M. F. Harrington and J. J. Harrington, for appellees.

IRVINE, C.

Skirving brought an action in the district court of Holt county against Slater, Savage & Kelley and one Kemp. A summons was served on Kemp in Holt county, and another, issued to Douglas county, was there served on Slater, Savage & Kelley. Kemp appeared and answered. Slater, Savage & Kelley, who had been sued as a copartnership, appeared specially, and procured the service as to them to be quashed. Skirving then amended his petition so as to make the individuals composing the firm of Slater, Savage & Kelley parties defendant, and another summons was issued to Douglas county, and there served upon them. Subsequently, judgment was rendered by default against Slater, Savage & Kelley, the cause being continued as to Kemp. Slater, Savage & Kelley, at the following term of court, filed a petition to vacate the judgment, under section 602 of the Code of Civil Procedure. The court dismissed this petition, and the case was brought to this court by petition in error, where the judgment of the district court was affirmed. Slater v. Skirving, 45 Neb. 594, 63 N. W. 848. The statement of the case in that opinion is quite full, and reference may be made to it for further facts. After the affirmance of that judgment, the present action was instituted, as an original action to enjoin the enforcement of the first judgment, on the ground that it is void. The former petition alleged in brief, as reasons for vacating the judgment, that it was irregularly obtained; that the petition stated no cause of action; and that jurisdiction was obtained by fraud upon the court and upon these plaintiffs. The present petition alleges these same matters, simply with more detail; and, further, that the original judgment was procured by perjury. The defendants in this action, by their answer, among other things, pleaded res judicata, the judgment dismissing the petition to vacate the original judgment being relied on as an adjudication of the matters here pleaded. It is on this question that the argument chiefly turns.

A circumstance on which some stress is laid in one brief, and of which complaint is made in the other, is that this court, in its opinion in the former case, referred to the petition as “a petition in equity.” This phrase was inadvertently used. An examination of the opinion shows that the case was treated as it was in fact,--a proceeding under section 602 of the Code to vacate the judgment. That is a proceeding in the original action, and not a distinct action. Iler v. Darnell, 5 Neb. 192. We therefore consider this case from the standpoint of the plaintiffs, regarding it not as a proceeding for the same object as the former; instead thereof, treating the former proceeding as one supplementary to the original case, merely to vacate the judgment, and this as an original action, appealing to the general equity powers of the court to relieve against a void judgment.

In another point, also, we proceed from the standpoint of the plaintiffs, and adopt as a correct expression of the law the language of Mr. Justice Field in Cromwell v. County of Sac, 94 U. S. 351: “It should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. * * * But, where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.” In considering this case in the light of that rule, we shall assume for present purposes, without now deciding--First, that the purpose and object of this proceeding are so far different from the purpose and object of the former proceeding, that this is to be regarded as an action based on another cause; second, that, therefore, no matter not actually litigated in the former proceeding was adjudicated thereby by implication, so as to prevent its determination here. On the...