The Board of Commissioners of Wilson County v. McIntosh

• Decision Date: 01 July 1883
• Citation: 1 P. 572,30 Kan. 234
• Parties: THE BOARD OF COMMISSIONERS OF WILSON COUNTY v. THOMAS MCINTOSH, et al
• Court: Kansas Supreme Court

1 P. 572

30 Kan. 234

THE BOARD OF COMMISSIONERS OF WILSON COUNTY v. THOMAS MCINTOSH, et al

Supreme Court of Kansas

July 1, 1883

Error from Wilson District Court.

ACTION brought by the Board of Commissioners of Wilson County against Thomas McIntosh, as sheriff of said county, and three others, as sureties on his bond as such officer, to recover $ 2,000, with interest thereon at seven per cent. per annum from January 1, 1878. At the February Term, 1882, judgment was given for defendants and against the plaintiff Board which brings the case here. The facts appear in the opinion.

Judgment affirmed.

S. S Kirkpatrick, for plaintiff in error.

E. A Barber, for defendant in error Neff.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

Under the authority of chapter 39, Laws 1877, the plaintiff commenced two actions to have certain tracts of land subjected to sale for taxes, penalties and costs. After judgment and sale in such actions, the sheriff claiming certain amounts received as his costs, the county attorney, on behalf of the plaintiff, filed a motion in each for the retaxation of costs. Due notice was given of such motion, the sheriff appeared in response thereto, and they were heard and determined by the court. Exceptions were taken, and leave given to make a case. Thereafter, without bringing the ruling on such motions to this court, the plaintiff commenced this independent action against the sheriff and his sureties. The defendants set up the ruling on the motions in bar of the action, and the only question is whether such ruling is a bar upon the principle of res adjudicata. The district court held that it is, and from such ruling the plaintiff comes to this court.

Plaintiff contends that it is a familiar doctrine that the decision of a motion will not ordinarily be so far conclusive upon the parties as to prevent their drawing the same matters in question again in the more regular form of a suit either in law or equity, and in support of this, cites the following authorities: Freeman on Judgments, §§ 325, 326; Bigelow on Estoppel, 2d ed., p. 20; Ford v. Doyle, 44 Cal. 635; Dickenson v. Gilliland, 1 Cow. 495; Chichester v. Conde, 1 id. 39; Benz v. Hines, 3 Kan. 390; White-Crow v. White-Wing, 3 id. 276; Dolfus v. Frosch, 5 Hill 493; Banks v. The American Tract Society, 4 Sandf. Ch. 438. That this is the general doctrine in respect to interlocutory motions, may be conceded; yet even as to those, it was generally the case that a second motion, presenting the same question, would not be entertained without leave of the court first obtained. (See Freeman, Bigelow, 44 Cal., and 5 Hill, supra.)

On the other hand, the defendants contend that this rule does not obtain in motions like the present, and for these reasons: (1.) The merits of the question were not only capable of being tried, but were in fact tried on the motion. (2.) It was a question upon which the parties were not entitled to a jury, but upon which the decision is by statute expressly given to the court. (Civil Code, § 593a.) (3.) The question arose in a motion made after judgment, and one which affected the ultimate and substantial rights of the parties. (4.) It was a matter which, when determined on the motion, could have been brought to this court directly for review. Hence they contend that the ruling contained all the essential elements to make the decision thereon res adjudicata.

It will be well to understand the exact limits of the question as it is presented in the record. It is conceded that the moneys claimed are those awarded to the sheriff on the motions to retax. It is not alleged that any new evidence can be presented, or that the facts are different from those presented on the motion. It is stated, it is true, that no evidence was offered on the hearing of the motions, other than the returns of the sheriff; but it is not intimated that those returns are incorrect, or that other facts exist which would controvert or affect them. So that it amounts to this: The court having once applied the law to the facts, and that ruling remaining in full force and unreversed, the plaintiff now asks that such ruling be disregarded and held for naught, and the question a second time considered and decided as to the right of the sheriff to such costs. And the sole basis of this claim is that such decision was rendered upon a motion.

Again, the decision of the motion was an order affecting a substantial right, made upon a summary application in an action after judgment, and therefore a final order, and subject to review in this court. (Civil Code, § 593a; Linton v. Housh, 4 Kan. 535; Civil Code, § 543; Dooly v. Norton, 41 Cal. 439; Cord v. Southwell, 15 Wis. 211; Schauble v. Tiejen, 31 Wis. 695; Hemphill v. Salladay, 1 Greene 301; Yaeger v. Circle, 1 id. 438.) Under such an order the sheriff would be justified in treating the costs as his, and if a similar order were made in favor of a witness, referee, or other party, the sheriff might properly pay the costs as so taxed. As between the parties who appear and present their claims, the order may fairly be deemed an adjudication and final.

Now upon these facts we think, the plaintiff ought to be estopped. It is not only familiar law but manifest justice that a man should not be vexed twice with the same litigation. Doubtless there are many exceptions to the letter of this rule, but wherever the exceptions have been recognized, they have been based upon what seemed necessary for the full protection of the rights of the parties. But when a question has been once fully litigated, and every opportunity given to either party to present his case and to have any supposed errors in the lower corrected by review in the highest court, it would seem an abuse of the rights of a litigant to compel him to enter upon a second litigation of the same question. Take the case at bar: A motion is made to retax costs, made by the plaintiff; the sheriff is notified; the question heard and determined by the trial court. The case is brought to this court, as it may be, for review; the question is here reconsidered and determined. And yet after this is all over, the plaintiff claims the right to ignore everything that has been done, to call the sheriff a second time into court and repeat the same litigation through the trial and appellate courts, and all because the first litigation was carried on in the form of a motion, and the other in that of an action. It would seem as though there should be some substantial reason to justify this departure from the rule that a man is not to be twice vexed.

The only reason given is, as heretofore stated, that the one litigation was carried on by motion and the other by action. But why should not a decision upon a motion be as conclusive as that upon a trial? The reasons given are, that motions are often made in the hurry of a trial, and decided with comparatively little examination and consideration; that the decision cannot be taken up for review; and that they are tried upon affidavits, rather than oral testimony. None of these reasons exist in the case at bar. The motion was not made until after judgment. It could not have been regarded as in any sense interlocutory, or one whose subject-matter could thereafter be more carefully examined, but must have been considered as a final determination as to the rights of the sheriff. It could have been taken up for review to this court, and indeed time was given to make a case. (Wooden v. Comm'rs of Allen Co., 22 Kan. 532.) The motion was heard, not upon affidavits, but upon the same testimony as would have been received upon a trial. Cessante ratione legis, cessat et ipsa lex.

We think there is a growing disposition to enlarge the scope of the doctrine of res adjudicata, and to place more...