The Missouri v. Bagley

• Decision Date: 07 June 1902
• Docket Number: 11,927
• Citation: The Missouri v. Bagley, 69 P. 189, 65 Kan. 188 (Kan. 1902)
• Court: Kansas Supreme Court
• Parties: THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. N. R. BAGLEY, as Administrator, etc

69 P. 189

65 Kan. 188

THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. N. R. BAGLEY, as Administrator, etc

No. 11,927

Supreme Court of Kansas

June 7, 1902

Decided January, 1902.

Error from Miami district court; JOHN T. BURRIS, judge.

STATEMENT.

THIS was an action against the Missouri, Kansas & Texas Railway Company for damages for the violation of contracts for the shipment of corn from Kansas City, Mo., to Laredo Tex. The first trial resulted in a verdict and judgment in favor of the plaintiff, N. R. Bagley, administrator of the estate of W. H. Harris & Co. In a proceeding in error, it was held that the alleged contracts upon which liability was asserted lacked mutuality and were, therefore, not binding on the railway company. For that reason the judgment was reversed. (Railway Co. v. Bagley, 60 Kan. 424, 56 P. 759.) When the case was remanded the petition was amended by Bagley and valid contracts were set up. After the issues were closed a trial was had, which resulted in a judgment against the railway company for $ 46,827.26. Exceptions to the rulings of the trial court were taken, and the railway company asked and obtained time to make a case for the supreme court, and execution of the judgment was stayed during the preparation of the case. Prior to that time Bagley had brought another action against the railway company to recover other elements of damages arising from the breach of the contracts, upon which judgment had been taken in the first case. In the second case the railway company filed an answer which, among other things, alleged the bringing of the first action for the breach of the several contracts above mentioned, the filing of a demurrer, and, afterward, of an answer by defendant, and later the filing of a reply by the plaintiff and copies of these pleadings were attached and made a part of the answer. It was also alleged that a trial had been had which resulted in a verdict in favor of the plaintiff, and that special questions had been submitted to the jury to which answers had been returned. It was alleged that there had been a motion for a new trial, which had been overruled and the verdict and findings of the jury and judgment of the court were attached to and made a part of the answer, and also an entry of the order of the court overruling the motion for a new trial, and giving time for the making of a case for the supreme court. In addition to these averments, the following were alleged:

"And this defendant further alleges and shows to the court that said action was commenced and prosecuted for the recovery of the damages occasioned to the plaintiff by reason of the breach of the several pretended contracts referred to in the original and amended petitions herein, as will more specifically appear by reference to 'Exhibit 1,' hereto attached, and that the recovery had, as fully appears from the verdict and findings of the jury, as disclosed by 'Exhibit 4' herein, is for the amount of plaintiff's damages by reason of the breach of each and all of said several pretended contracts referred to in the original and amended petitions herein; that the plaintiff named in 'Exhibit 1' is the same person named as plaintiff in the original and amended petitions filed in this action; that the defendant in both cases is the same; that the several pretended contracts referred to and described in 'Exhibit 1' are the same identical contracts referred to in the original and amended petitions herein; that the alleged breach of said several pretended contracts alleged in 'Exhibit 1' is the same identical breach of each of said contracts that is charged in the original and amended petitions in this case; that the damages claimed in this case are a part and parcel of the damages alleged to have been occasioned by the breach of each of said pretended contracts as alleged in said 'Exhibit 1'; that it is not claimed in either 'Exhibit 1' or in the original and amended petitions herein that there was more than one breach of each of said several pretended contracts.

"And this defendant further alleges and shows to the court that the violation and breach of each one of said pretended contracts constitute a single and entire cause of action, and that any damages which the plaintiff sustained by reason of said breach of any one of said pretended contracts could be recovered in a single cause of action and, as fully appears by exhibits '1,' '2, '3,' '4' and '5' hereto attached, plaintiff has had one recovery for the breach of each and all of said pretended contracts, and that whatever further damages he claims he sustains for the breach of any one and all of said pretended contracts are merged in the action which he has already prosecuted to final judgment and in the judgment which he has therein obtained against this defendant; that because thereof the plaintiff is estopped from further prosecuting this action, or any other action for the recovery of any damages because of the alleged breach of any one or all of the several pretended contracts referred to in the original and amended petitions herein; that the judgment heretofore rendered in case No. 4367 is res judicata and conclusive upon the parties herein as to the amount of plaintiff's damage by reason of the alleged breach of the several pretended contracts referred to in the original and amended petitions herein."

A demurrer to this defense was filed by Bagley, upon the ground that it did not constitute a defense to the amended petition, but the demurrer was overruled, and Bagley having no further plea to make to the defense, judgment was entered on the pleadings in that case in favor of the railway company. The judgment in the second case was given on July 11, 1900, and the case-made in the present proceeding was served three days later, to wit, July 14, 1900. A motion is made to dismiss this proceeding, on the ground that the railway company has recognized the judgment as valid by pleading and enforcing it in the second action, for the advantage of itself and to the disadvantage of Bagley.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT -- Right to a Review -- Ruling on Plea of Another Action Pending. The plaintiff brought two suits upon a single cause of action, in the first of which he recovered a judgment against the defendant. In the second suit defendant set up, by way of answer, that a former suit upon the same cause of action had been prosecuted to judgment, which was a final adjudication, and that the causes of action were merged therein. The court sustained the defense, and held that the proceedings in the first case were a bar to the maintenance of the second. Held, that the pleading of the former proceedings, including the judgment, although a recognition of the existence of the judgment, did not take away from the defendant the right to a review of such proceedings and judgment.

2. LIMITATION OF ACTION -- Original Petition and Amendment -- New Cause of Action. Where the original petition states no cause of action whatever, it will not arrest the running of the statute of limitations, and an amendment made after the bar of the statute is complete must be treated as filed at the time the amendment is made. A cause of action, being stated then for the first time, cannot escape the bar of the statute of limitations by being filed as an amendment.

James Hagerman, T. N. Sedgwick, J. M. Bryson, and Sperry Baker, for plaintiff in error.

Ellis, Cook & Ellis, and Frank. M. Sheridan, for defendants in error.

JOHNSTON J. SMITH, CUNNINGHAM, GREENE, POLLOCK, JJ., concurring. DOSTER, C. J., dissenting

OPINION

JOHNSTON, J.:

Does the answer in the second suit, which sets up prior proceedings in the present action, preclude a review of the latter? It is contended that the plaintiff, having pleaded that judgment and obtained a benefit, was, therefore, not in a position to contest its validity. The action of the company, as will be seen, does not affirm that the judgment was regularly obtained and that the proceedings in the case were free from error. The existence of the judgment was recognized, it is true, but no money or property awarded was accepted by the company, nor would its right to plead that the plaintiff was prosecuting two actions upon the same cause be affected by the reversal of the judgment. From the averments of the answer, which is said to constitute an estoppel, it is manifest that the pleader was challenging the right of the plaintiff to split his causes of action, or prosecute two actions upon a single indivisible cause. To show the court that the plaintiff was prosecuting an action against the defendant involving the same matters, the pleader set up all the proceedings in the former cause, including the judgment. It was not the judgment alone that was pleaded as a bar, but it was all the steps in the action, of which the judgment was one, and which it was necessary to mention in order to give a correct history of the litigation.

If the plaintiff's petition in the second cause had shown on its face that there was "another action pending between the same parties for the same cause," it would have been insufficient, as that fact is a specific ground of demurrer (Civil Code, § 89; Gen. Stat. 1901, § 4523.) It cannot be that the setting up of such a defense in an answer in the second action admits plaintiff's right of recovery in the first. The defendant was claiming nothing on account of the judgment to which it would not have been absolutely entitled if no judgment had been rendered. An averment that the plaintiff had sued in a former action for the same cause is not inconsistent with a claim that plaintiff was not entitled to recover in such action. Nor is there anything inconsistent between an attempt to prevent the...