Wilson v. Buell

• Decision Date: 13 February 1889
• Citation: 20 N.E. 231,117 Ind. 315
• Parties: Wilson v. Buell.
• Court: Indiana Supreme Court

117 Ind. 315

20 N.E. 231

Wilson

v.Buell.

Supreme Court of Indiana.

February 13, 1889.

Appeal from circuit court, Shelby county; K. M. Hord, Judge.

Action by Greenville Wilson against Israel Buell. Plaintiff appeals.E. P. Ferris, W. W. Spencer, and John S. Ferris, for appellant. Adams & Michener, for appellee.

Berkshire, J.

This case was tried by the court, and at the request of both parties there was a special finding made. Counsel for the appellee contend that the special finding is not properly in the record, and is therefore in effect but a general finding. Counsel's contention is not tenable. The record shows that at the proper time both plaintiff and defendant requested a special finding. This is all that the statute requires.

Upon the facts as found the court stated its conclusions of law in favor of the appellee. The appellant excepted to the conclusions of law, and judgment was rendered for the appellee. The appellant appeals and assigns three errors, as follows: (1) The court erred in overruling the demurrer to the second paragraph of answer; (2) the court erred in overruling the demurrer to the fourth paragraph of answer; (3) the court erred in each of its conclusions of law upon the facts as found. We are not called upon to consider the second alleged error for the reason that the court found against the appellee upon the issue tendered by the fourth paragraph of answer. The second paragraph of answer reads as follows: “And for further answer the defendant says that heretofore, to-wit, September 29, 1884, in this court, the said Greenville Wilson impleaded the defendant and Robert Wagner in an action for the same identical debts and causes of action as are set forth in the case at bar, the same identical debts and causes of action being pleaded in the complaint as were pleaded and charged in the complaint, in the action first brought, as aforesaid, and none other; that afterwards such proceedings were had in said cause that this defendant and said Wagner joined issue in said action with said plaintiff upon said complaint, and afterwards, to-wit, ------, 1885, and before the commencement of this suit, upon the trial of the issues so joined in said cause, being the same matters as are here joined in the case at bar, it was adjudged by the court that the said plaintiff take nothing as against this defendant, and that this defendant recover of and from said plaintiff his costs and charges in said behalf laid out and expended; but that said plaintiff should have and recover of and from said Wagner the sum of $ ------, and the costs of the action, which said judgments are in full force and unreversed. Wherefore he demands judgment.” We have been unable to discover any infirmity in this paragraph of answer. It is in the form ordinarily used in pleading a former recovery.

Counsel for the appellant contend that the answer does not show with sufficient definiteness that the matters litigated in the former action were the same that are involved in this action; that it was not sufficient to allege that the contract counted upon in the former action was the same contract sued upon in the present action, but to make the answer good it was necessary that it contain an averment that the breaches complained of were the same. We have carefully examined the authorities cited, and do not think they support counsel's position. The law is well settled in Indiana by an unbroken line of cases from the organization of this court to the present, that an adjudication in a prior action is a determination not only as to what was actually decided therein, but also as to every other matter which the parties might have litigated in the case. Fischli v. Fischli, 1 Blackf. 360;Vail v. Rinehart, 105 Ind. 6, 4 N. E. Rep. 218; Elwood v. Beymer, 100 Ind. 504;Richardson v. Jones, 58 Ind. 240. If at the time of the prior action the contract sued upon had been broken in other particulars than alleged in the complaint, the judgment is none the less a bar as to those than it would have been if they had been included in the complaint. Elwood v. Beymer, supra. The proceedings in the former action merged the contract and all rights of action because of breaches thereof into the judgment. Freem. Judgm. §§ 215, 216, 240; Gould v. Hayden, 63 Ind. 443;Crosby v. Jeroloman, 37 Ind. 277, 278;City of North Vernon v. Voegler, 103 Ind. 314, 2 N. E. Rep. 821; Railway Co. v. Koons, 105 Ind. 507, 5 N. E. Rep. 549. But if the position taken by counsel was a tenable one, the answer would be good. It alleges that the debts and causes of action sued upon are the same identical debts and causes of action that were litigated and determined in the former action, and is equivalent to an allegation that the breaches of contract complained of in the present action are the same as in the former action. But it is contended that the parties to the two actions must be identical. We are not of this opinion. If the position assumed is a correct one, the effect of a former recovery could be avoided in every case by the addition of a party not before the court in the first action or by omitting one of the parties thereto. All that is required in relation to parties is that the parties to the pending action were before the court in the prior action, and bound by the judgment therein rendered. The law in this particular is so well settled as not to require a citation of authorities. See Richardson v. Jones, supra.

The complaint is in two paragraphs. The substance of the first is that on December 12, 1879, the plaintiff delivered to the defendant two checks on the First National Bank of New York, amounting to $1,050, with the request that the defendant take the same to one of the banks in Shelbyville, and procure the money thereon for the plaintiff; that the defendant did on said day procure thereon the sum of $1,049 in cash for the plaintiff; and that on the 1st day of January, 1880, the plaintiff requested payment of the defendant, which was refused, and that he converted the money to his own use, and that said sum is due and wholly unpaid. The second paragraph charges that on the 12th day of December, 1879, the defendant obtained for the plaintiff $1,049, and on the 1st day of January, 1880, the plaintiff requested payment, which was refused by the defendant. The complaint in the former action, as set out in the special finding of the court, was entitled, “ Greenville Wilson vs. Israel Buell and Robert Wagner,” and was in three paragraphs, but one of which we need consider. This paragraph, in substance, was that the defendants were indebted to the plaintiff in the sum of $1,500 for money had and received of the plaintiff on the 12th day of December, 1879, and that the same was due and wholly...