Capehart v. Van Campen, 10 Minn. 158

Capehart v. Van Campen

10 Minn. 158 | Minn. | 1865

By the Court —

Berry, J.

— The complaint in this case sets out a cause of action upon a promissory note, and also certain matters of anticipated defence.which it seeks to avoid. . To this complaint the respondent interposed a demurrer, from the order sustaining which an appeal is taken to this Court.

There is also an agreed “statement of case,” in which some of the facts stated in the. complaint are set out somewhat more in detail than in the pleadings, with perhaps allegations of new matter.

As the demurrer was taken to the complaint and not to the statement of case, we are unable to perceive on what "ground the statement is entitled to any consideration, and so we lay it aside.

It is alleged in the complaint that a former action was brought *161in the District Court for Ramsey County upon the same promissory note, by one Brimhall, the predecessor in interest of the appellant, against the respondent; that judgment was rendered in favor of Brimhall for a balance, after deducting a counter claim; that an appeal was taken from said judgment to this Court, where, upon “due proceedings had, it was considered and adjudged * * * that the said judgment be reversed and the said action remanded to the District Court.” Brimhall vs. Van Campen, 8 Minn., 13. It is not necessary for us to determine .whether the former judgment was or was not an adjudication upon the merits of the same cause of .action, between the same parties in interest now before us, nor whether that judgment would or would not have been a bar to this action if unreversed. The judgment was reversed by the proper tribunal, and the action remanded to the District Court whence it came, so that it no longer possessed the qualities of a final judgment upon which to found a plea in bar. Nor is it at all important whether or not the complaint shows that all the formal steps necessary to return the action to the District Court have been taken. If they have not been taken then the action is pending in the Supreme Court, and if they have been taken then it is pending in the District Court; and which ever horn of the dilemma is preferred, in either case it appears upon the face of the complaint that there is another action pending upon the same subject matter, between the ‘Same parties in interest now before us in this action. See Sec. 37, page 535, Pub. St.; Sec. 34, page 629, Id.

The order sustaining the demurrer is affirmed.