Zirkle v. Moore, (No. 6923)

• Decision Date: 26 May 1931
• Docket Number: (No. 6923)
• Citation: 110 W.Va. 535
• Court: West Virginia Supreme Court
• Parties: Reuben 0. Zirkle v. Moore, Keppel & Company

110 W.Va. 535

Reuben 0. Zirkle

v.Moore, Keppel & Company

(No. 6923)

Supreme Court of Appeals of West Virginia.

Submitted May 20, 1931.

Decided May 26, 1931.

1. Appeal and Error

Error, in order to justify reversal, must be prejudicial to the complaining' party.

2. Judgment

A judgment of a court of competent jurisdiction upon any fact directly put in issue as a ground for recovery cannot be disputed in a subsequent suit between the same parties; and even if the second suit is for a different cause of action the fact once so determined must, as between the same parties, be taken as conclusively established so long as that judgment remains undisturbed.

Error to Circuit Court, Tucker County.

Action by Reuben 0. Zirkle against Moore, Keppel & Co. To review a judgment sustaining a special plea setting up a former adjudication and dismissing the case, the plaintiff brings error.

Judgment affirmed.

Joseph J. Madden and Wm. T. George, for plaintiff in error.

Claude W. Maxwell and Samuel T. Spears, for defendant in error.

Lively, Judge:

Plaintiff sued in ejectment and defendant pleaded the general issue, and by special plea set up a former adjudication and filed disclaimer. The court permitted the plea of res judicata to be filed over plaintiff's objection, and issue was joined thereon. That issue was submitted to the court by agreement. The court sustained the plea and dismissed the case, whereupon this writ followed.

Two questions arise: (1) Does section 30, chapter 90, Code 1923, (Code 1931, 55-4-10), permit a plea of res judicata in ejectment?; and (2) did the adjudication set up in the plea and record tendered with it estop plaintiff from maintaining his action in ejectment?

The code section above cited reads: "The defendant may demur to the declaration, as in personal actions, or plead thereto, or do both. But he shall plead the general issue only, which shall be, that the defendant is not guilty of unlawfully withholding the premises claimed by the plaintiff in the declaration. Upon such plea, the defendant may give in evidence any matter, which is pleaded in the former writ of right, would have barred the action of the plaintiff." We will discuss the first question.

The action of ejectment is of comparatively recent origin, and was evolved from the ancient real actions at common law for the purpose of avoiding the technical difficulties and fictions pertaining to those actions. It supersedes the old possessory and droitural actions such as writ of entry, writ of right, writ of formedon in descender, and the like, and provides a simple and speedy method whereby any person who has a subsisting interest in the premises claimed and a right to recover the same or to recover the possession thereof or some share, interest or portion thereof, may assert his right. Warville on Ejectment, chapter 1; Code 1923, chapter 90, section 4. It may be well to repeat here the observation of Judge Holt in Clark v. Perdue, 40 W. Va. 300, 303: "Our statute on the action of ejectment abolishes the writ of right, and moulds into the one action called 'ejectment', simple and comprehensive, all the substantial provisions of former law, with such improvements as were found to be proper to disentangle justice from nets of form, preserve all the benefits of the writ of right and of the action of ejectment, as well as all other actions, possessory and droitural, and is also made comprehensive enough to try the mere right to real property, as well as the right of possession, and to determine it finally, being substantially a writ of right as much as an action of ejectment." In the early stages of the transition of the old English actions for possession and title to real property in this country to the simpler action of ejectment the conclusiveness of a former judgment in ejectment as an estoppel against a subsequent suit in ejectment was questioned, and was determined in Miles v. Caldwell, 2 Wall. 35 (1864), where it was held that the former recovery was a bar to a subsequent suit, conceding it would be otherwise under the common law rule. See also Chapman v. Armistead, 4 Munf. 382 (Va. 1815). We perceive no reason for not applying the principles of estoppel and res judicata to ejectment cases, for sound public policy and reason dictates that there should be an end of litigation, and where a matter has been once heard and determined by a court of competent jurisdiction and its judg- merit has become final, it shall not subsequently be heard in any other court between the same parties. It was so held in Clark. v. Perdue, 40 W. Va. 300. But the application of that principle in this ejectment case is not here questioned. The point is that it was improperly presented to the court by special plea in bar, whereas, the statute above quoted says that the only plea shall be the general issue not guilty of unlawfully withholding the premises sued for. The statute, however, does not preclude pleas in abatement. Such construction was given it in James River & Kanawha Co. v. Robinson, 16 Graft. (Va.) 434, and in Reynolds v. Cook, 83 Va. 817. But this Court has held in Johnston v. Griswold & Rodgers, 8 W. Va. 240, that a special plea stating that pending the action plaintiff had conveyed the land in dispute was improper, for such defense could be made under the general issue. It was never intended by this statute that a former adjudication could not come into the case in bar of a recovery; or that the issue raised thereby should in all cases be tried to the jury. If the defense was made under the general issue, and then a proper record of the former adjudication presented, there being no disputed question of fact, the court would determine the question of law, whether the record was a bar. In ejectment, as in all other cases, the court determines questions of law, and the jury are the triers of fact. It will be noted that under the plea of the general issue "the plaintiff must be ready for any and all assaults upon his own title, and be prepared for every emergency that may arise in the progress of the trial; and he is entitled to no notice of any defense upon which his adversary may rely thereunder", except equitable defenses which the statute allows to be pleaded. Hogg's PI. & Forms, p. 188. Wherein, therefore, was plaintiff prejudiced by the action of the court in permitting the plea to be filed? Unquestionably the record of the former judgment could have been introduced under the general issue; for under this plea anything that will bar right to recovery may be given in evidence. Hutchinson on Land Titles, sec. 469. The plea was notice to plaintiff of a defense which would be interposed after a jury was sworn. Granting that the filing of the plea was error, we cannot see wherein it was prejudicial. It, at least, gave notice of a defense which, if good, as a matter of law barred recovery. And plaintiff realizing that the record of the former trial in bar raised a question of law for the court, and not for the jury, by agreement submitted that question of law to the court. If plaintiff had sued defendant in ejectment and received an...