Smith v. Cowell

• Decision Date: 07 October 1907
• Citation: 41 Colo. 178,92 P. 20
• Parties: SMITH et al. v. COWELL et al.
• Court: Colorado Supreme Court

92 P. 20

41 Colo. 178

SMITH et al. v. COWELL et al.

Supreme Court of Colorado

October 7, 1907

Error to District Court, City and County of Denver; P. L. Palmer Judge.

Action by Harrison Cowell and others against Frank Guest Smith and others. Judgment for plaintiffs, and defendants bring error. Reversed and remanded.

W. C. Kingsley, for plaintiffs in error.

E. T Wells and John H. Chiles, for defendants in error.

CAMPBELL J.

This action was begun in 1900 in the district court of Arapahoe county by the heirs and devisees of William Cowell, deceased to quiet title to, and remove an alleged cloud from, a fractional interest in certain lots in the city of Denver of which they claim ownership as devisees under his will. The cause of action pleaded is purely equitable, and equitable relief only is prayed. The defendants, heirs, personal representatives, and devisees of Charles E. Smith, deceased, all of whom are nonresidents of Colorado, set up several separate defenses in their answer, only one of which is discussed in this opinion, as we think it defeats a recovery in the present action. This defense is a plea of res judicata in bar of the action. It alleges, in substance: That the defendants here claim title to the property in dispute through Charles E. Smith, deceased; that heretofore, and in the year 1895, these plaintiffs instituted in the same district court of Arapahoe county an action against Smith in his lifetime on the same equitable cause of action as the one set up in the complaint in this action; that the former action was duly removed by the defendants there to the United States Circuit Court for the District of Colorado, and therein was filed by defendants a general demurrer to the complaint on the ground that plaintiffs were not entitled to the discovery or relief against the defendant prayed for. After argument on such demurrer, it was taken under advisement, and upon consideration by the court such demurrer was, in January, 1896, sustained. No request to amend was made, no order granting leave to amend or plead over was entered, and no amendment to the complaint was tendered or filed. Thereafter the federal court entered a decree and judgment of dismissal in the cause, which, omitting the title, reads: 'This cause coming on to be heard at this term upon the bill of complaint herein and the demurrer thereto of the defendant Charles E. Smith, and which was argued by counsel, and thereupon upon consideration thereof it was ordered, adjudged, and decreed that the said demurrer of the defendant Charles E. Smith to the said bill of complaint be sustained, and that the said bill of complaint be and the same hereby is dismissed as to said defendant Smith and with costs to the said Charles E. Smith to be taxed. Said dismissal being without prejudice to any action at law.' The defendants further allege that the decree and judgment remain in full force and effect, and from it no appeal was ever taken, and it has never been set aside, vacated, or held for naught, and that the proceedings in the United States court were proceedings on the merits of the cause, which they (defendants here) plead in bar of the present action.

In the replication herein the plaintiffs admit the institution of the former action, the filing of the demurrer, the order sustaining the same, and the decree of the federal court dismissing the action, as stated in defendants' answer, but deny that such proceedings were upon the merits, and then proceed to allege, apparently as an estoppel, that in the pending action they (the plaintiffs) filed an amended complaint asking for legal relief, which amended complaint was, on defendants' motion, stricken from the files by the court. It clearly appears by comparison of the complaint in this, with the complaint in the former, action, as well as by agreement of counsel, that the two pleadings set forth exactly the same equitable cause of action, ask the same relief, and are substantially in the same language. The plaintiffs are the same in both actions and sue in the same capacity. The defendants here are privies in estate to Charles E. Smith, deceased, who was sole defendant in the former action, and they defend as such. The issues in the two complaints are identical, and the only particular in which, either by pleading or argument, plaintiffs claim the defense is lacking as a complete bar to the present action, is that the proceedings in the former suit, namely, the order sustaining the general demurrer, and the final decree dismissing the bill of complaint with costs against plaintiffs 'without prejudice to any action at law,' were not upon the merits, in the sense that they are a bar to a further, and this, action on the same issue seeking the same equitable relief between the same parties and their privies in estate. The further matters which, by pleading and argument, plaintiffs urge by way of estoppel, have no connection with the subject of the plea of res judicata, and they will be separately considered.

From the foregoing statement it is obvious that there are no questions of fact in dispute. The sole question is one of law arising out of undisputed facts. Nevertheless, many of the authorities cited by plaintiffs are applicable only on the supposition that the facts are quite different from what the record shows them to be. Opposing counsel seem to be in accord on the general proposition, which is sustained by the annexed authorities, that unless and until in an appropriate proceeding the same is set aside, a final judgment or decree of a court of competent jurisdiction upon the merits, either upon an issue of law or of fact, concludes the parties and their privies, and they may not be again litigated in any future action or suit between them in the same court, or in any other court of competent jurisdiction, upon the same cause of action, not only as to all such things as were within the issues, and, in fact, determined, but as to all other matters which the parties might have litigated under the issues as incident to, or necessarily connected with, the subject-matter of the litigation, whether the same, as a matter of fact, were litigated and determined or not. D. C. i. & W. Co. v. Middaugh, 12 Colo. 434, 21 P. 565, 13 Am.St.Rep. 234. The qualified rule where the causes of action are different need not be stated, for that kind of case is not before us. Grand Valley Irr. Co. v. Fruita Imp. Co., 37 Colo. 483, 86 P. 324. It makes no difference, so far as concerns the question of conclusiveness, that the previous judgment so pleaded was rendered in an action or proceeding different in form from that in which the estoppel is pleaded, and so it has been held that a judgment on the merits in an action at law is conclusive upon the parties, as to all issues tried and decided, in any future suit in equity, except as to matters, if any, within the exclusive jurisdiction of equity, and hence not cognizable at law. The converse of this is likewise true: That such determination in a court of equity is conclusive upon the parties in a subsequent action at law. A judgment of nonsuit or voluntary dismissal, or dismissal on some technical ground, is no bar to a second suit on the same cause of action, except as to the particular ground on which the order of dismissal was based. A judgment rendered in dismissing an action following an order sustaining a demurrer may, or may not, be a bar. If it was for lack of jurisdiction, or that plaintiff mistook his remedy, or for some mere technical defect, it is not a bar. If the demurrer goes to the merits of the action, as where it is upon the ground that the facts stated are not sufficient to constitute a cause of action, it is as conclusive as a judgment entered on a verdict finding the facts. Had not the United States Circuit Court inserted in the decree the qualifying words 'without prejudice to any action at law,' there is no question that, tested by the foregoing rules, which are upheld by the Supreme Court of the United States and our own court, the dismissal of the bill would preclude the plaintiffs from bringing either this equitable suit, or an action at law, against the defendants and their privies on the same cause of action. That would be the necessary effect of the decree of dismissal because it followed an order sustaining a general demurrer going to the merits. Other cases supporting the foregoing statements of the law are cited in 23 Cyc. 1167, 1215, et seq., 1116, 1221, 1222, 1153, 1232; 24 Am. & Eng. Enc. Law (2d Ed.) 710, 784, 721.

In Aurora City v. West, 7 Wall. (U. S.) 82, 100, 19 L.Ed. 42 Clifford, J., in referring to effect of a judgment rendered on trial of an issue of law, said that on demurrer to any of the pleadings which are in bar of the action the judgment for either party is the same as it would have been on an issue of fact joined upon the same pleading and found in favor of the same party. In Gould v. Evansville, etc., R. R. Co., 91 U.S. 526, 23 L.Ed. 416, the court, at page 534 of 91 U.S. (23 L.Ed. 416), in summarizing the doctrine, said: 'That if judgment is rendered for the defendant on demurrer to the declaration, or to a material pleading in chief, the plaintiff can never after maintain against the same defendant, or his privies, any similar or concurrent action for the same cause upon the same grounds as were disclosed in the first declaration, for the reason that the judgment upon such a demurrer determines the merits of the cause, and a...