35 Minn. 70 | Minn. | 1886
This action is for the value of goods alleged to have been sold and delivered to the defendant. The plaintiffs’ allegations are denied by the answer, which also sets up as new matter a former adjudication in bar. As the demurrer to the denials was properly overruled,—C. N. Nelson Lumber Co. v. Pelan, 34 Minn. 243, (25 N. W. Rep. 406,)—we need only inquire as to the sufficiency of the answer in respect to the alleged former adjudication.
1. To work an estoppel the former suit must have been determined on the merits. It appears from the answer in this action that upon the trial of the former suit, after the plaintiffs had submitted their evidence, the defendant made a motion for “judgment upon the pleadings and evidence now before the court,” and that thereupon the court granted the motion, and directed that judgment should be accordingly so entered for the defendant. The decision of this motion necessarily determined the question as to the sufficiency of the plaintiffs’ evidence “to substantiate their claim or right to recover;” hence the only judgment that the court could properly order at that stage of the case was a judgment of dismissal. Gen. St. 1878, c. 66, § 262, subd. 3; Craver v. Christian, 34 Minn. 397, (26 N. W. Rep. 8.) A dismissal before final submission is not a bar to a subsequent action, and no finding or verdict is required in such case. Thompson v. Myrick, 24 Minn. 4. Before final submission, therefore, the court may take a case from the jury, and dispose of it upon the evidence without a verdict, which would properly be a dismissal; and so, after submission, it may order a verdict, which would be a disposition upon the merits. Woodling v. Knickerbocker, 31 Minn. 268, (17 N. W. Rep. 387.)
Taking the case from the jury as alleged was not a disposition of the case upon the merits, and it is not to be presumed that the court erroneously rendered judgment upon the merits; and, for aught that we can se§, the order for judgment made was consistent with and would warrant a judgment of dismissal; and it is not alleged, nor
2. But we think the court was right in holding that the identity of the causes of action in this and the former suit is sufficiently shown by the answer. They are alleged to be the same, and it may be fairly inferred from the face of the two complaints that they involve the same subject-matter. In each case the sale and delivery of the goods, together with the value thereof, are alleged; and for aught that appears, there might have been a recovery in the former suit, though the school-district orders set out in the complaint therein were legally defective or informally issued. Thompson v. Myrick, 24 Minn. 4.
Order reversed, and cause remanded for further proceedings.