*1 Respondent Appellants, PRESLAR, al., CARR et (47 497) N. W.2d 1951) (File Opinion April 17, filed No. *2 Falls, for Sioux Davenport, Evans, Smith, Hurwitz & Appellants. Plaintiffs and Q. Sharpe, Kennebec, Delzer, River,
Mason & White M. Respondent. for Defendant and Jay complaint plaintiffs,
SMITH, R. J. The Krogman, prays judgment declaring Louie for a royalty gas of the oil and reserved in of Texas a lease 5% Benjamin by defendant, land F. owned Preslar. On plaintiffs’ merged in a cause of action previous parties in entered is res between judicata, the trial court entered for defendant. validity of the trial that conclusion law court presented appeal plaintiffs. for decision this gave litigation The facts which rise to the between the parties largely They county, undisputed. are live Mellette January defendant, Dakota. In South 1948 the re- telegram Payne Midland, from M. ceived one Robert offering buy gas Texas, an oil and lease of the Texas land question primary years $9,600 term ten cash per $1 acre annual rental. Thereafter defendant and plaintiffs writing by entered into a contract which agreed plaintiffs transport Texas, should defendant to ability employ to assist de- and there their best efforts and gas rights disposing fendant in of the oil and in his land for a commission of of the consideration received over and 5% original Payne. Thereupon above the offer of Mr. parties journeyed negotiated to Texas and lease Payne. provided primary Mr. The lease for a term of years, delay ten $11,165, bonus or cash consideration of per one-eighth annum, rental of $1 acre gas produced the oil and thereunder. While the plaintiffs were in Texas defendant executed and delivered to an instrument entitled a “Mineral Deed” which terms conveyed granted, plaintiffs and transferred to an undivided gas oil, one-twentieth interest in all of the inals and other miner- question. and under the Texas land in April Thereafter in 1948 the action was com- *3 by against menced herein, the defendant and Krogman, plaintiffs complaint herein. The set. forth the background alleged factual we have recited and in substance Krogman, pro- therein, that the defendants Carr and had by falsely cured the above-described mineral deed from him fraudulently representing himto that it was the com- pensation agreement due them under the written of the parties. complaint alleged That further that $78.25was due services, for their and tender was payment made that amount as in full of their services. prayer complaint The of the was for cancellation of the above described deed, mineral and that the defendants required reconvey by therein be like instrument. The answer of Carr and in plaintiff’s allegation undisputed fraud, denied supra, facts we stated and then continued in words as compliance follows: “That with the contract made and plaintiff entered into and between and defendants herein- plaintiff thereupon mentioned, before the said made, exe- cuted and delivered to the defendants Mineral Deed con- (5%) veying per to the five defendants cent his one- eighth royalty, promised mentioned, hereinbefore pay being to defendants further $78.25, sum of by plaintiff amount due them for the cash received over and by telegram, $9600.00 above the offered which said sum of part paid.” $78.25is now due and no of which has ever been against prayer Prestar of the answer was for for and costs.
Thereupon motion Preslar served a requested pleadings. en- that the court substance he (a) Krogman against ter for Carr him (b) cancelling $78.25, for him them described (c) reconvey by requiring mineral deed and them to like deed.
At same moved to time Carr and amend portion quoted supra their answer so as to substitute compliance therefor words follows: “That in with the plaintiff made entered contract into and between plaintiff defendants, mentioned, hereinbefore the said thereupon made, executed delivered defendants conveying per a Mineral Deed five the defendants cent (5%) rights * of the mineral in the said land hereinbefore described; that the execution of the said mineral deed was matter; all mutual mistake of concerned in the plaintiff make, that it was intended that said execute and Royalty conveying deliver to the defendants a Deed (5%) per said defendants five cent of the reserved plaintiff by gas to the said of the oil and lease terms described, hereinbefore and the defendants tender into plaintiff, Court, for the benefit a Mineral Deed recon- (5%) veying rights the five cent mineral *4 duly plaintiff, by said land defendants, the to which deed executed the plaintiff required make, and the to exe- convey- Royalty cute and deliver to the defendants a Deed (5%) ing per royalty to said the defendants five cent the plaintiff gas reserved to the in the oil said and lease hereto- compliance by mentioned, fore in contract made plaintiff defendants, and between wherein the said convey plaintiff agreed to five defendants cent (5%) any royalty plaintiff alleged reserved to as in paragraph sought of2 defendants answer.” The motion also prayer pray judg- amend the answer so as to delivery requiring royalty of such a deed as amendment describes. together. two were heard and
These motions considered The motion to amend answer was denied and the mo- granted. judgment pleadings Accord- was tion for ingly judgment on the against entered for Preslar Carr requiring Krogman cancelling them the mineral deed and reconvey by Krogman deed, like and for Carr equal taxed less the costs Preslar an amount for Preslar. they reconveyed appeal did
Carr judgment deposited the from the so entered. Preslar money judgment with the clerk where it re- amount mains. by
The action was thereafter commenced they allege plaintiffs. complaint In their as agreed compensate that Preslar them for their services by paying them all of above described the considera- 5% by gas tion received Preslar for the lease of the described rights $9,600; and oil in excess of that under the terms in of their contract are entitled to a interest 5% Payne; Mr. reserved the lease to and that Preslar recognize right. They pray refuses for a declaring aforesaid.
Among by alleges other defenses Preslar his answer Krogman merged that the cause the action of Carr and previous action and is res trial court sustained that defense. position substance, it is the of Carr and
that the court action refused to consider and determine merits of their claim to re- 5% Payne, served of res the lease to Mr. and therefore the doctrine judicata is not invoked the record. We sustain that contention.
The doctrine of res
was under considera
Service,
274,
tion Keith v.
Willers Truck
S.D.
N.
“First,
W.
a final
Fields in 94 U.S. 24 L.Ed. Cromwell reproduce.that present purposes pass- 195. It serves our age. “There is a difference between the effect of estoppel prosecution as a bar or of a second act- upon demand, ion estoppel claim or an same its effect as parties upon a
in another action between the same case, different or In the former claim cause action. judgment, upon merits, if an rendered constitutes ab- finality subsequent solute bar to a It as action. is controversy, concluding parties claim or demand in every privity only them, those in matter which was offered and received to sustain or defeat the any demand, claim or but as other admissible matter * ** might purpose. which been offered for that sought apply estoppel 'Where it is of a arising rendered cause one of action to in a matters inquiry suit different action, cause of must al- ways question actually litigated point be as to the or original might determined in the not what have been ” litigated thus and determined.’ universally accepted principle Another of the doc single trine of res is that a or entire cause of action split cannot be so toas constitute the basis of more then one recovery any part suit, and that of such an entire claim merges the whole and another action bars to recover the Judgments, Judg C.J.S., 661; § Am.Jur., residue. Judgments, ments, 173; Ed., § 596; Freeman on 5th Judgments, plead Restatement, § 62. Such a cause of action subject principle judg ed as a counterclaim to this part merger ment thereon for a of the claim will result in a *6 616 preclude 50 the residue. C.J.
and' another action to recover (1). Judgments, S., § 684 b. applying principles purpose it is these
For the give right that which establish or rise to settled the facts party his seeks to enforce constitutes Rust, cause C.J.S., 344; 50 action. Jerome S.D. N.W. Judgments, Jur., Actions, 2; § 648; 1 Am. and Freeman Judgments, Ed., § on 5th argument some men- the course there has been
tion of the distinction between a mineral deed and a agree deed. seem to that the mineral deed As conveyed delivered to Carr and to them an interest reversion, and, least, or at share in the owner’s to that extent something greater it transferred and different than Carr contract, claim as due to them under their necessary precise to determine the we think it will not be a mineral difference between deed deed under the law of Texas.
It will be observed that two different causes of action adjudicated pleaded and on were their merits in the former predicated upon hand, action. On the one fact procured by that the mineral deed had been from him Carr Krogman by prayed remedy fraud. Preslar for the equity pay- cancellation. As an incident he offered to do ing admittedly to defendants an amount to them. due On the hand, other claimed the to recover money judgment from Preslar for a due balance them pursuant services rendered to written contract. The judgment pleadings granted prayer on the both of the complaint and of the answer. predicated
The Preslar cause of action on fraudulent representations disposed of cancel- judg- lation. The which court entered that allegation is left doubt because the fraud was de- pleadings. nied and the was entered on the un- We may derstand the contention to be that the trial court theory Krog- set the mineral deed aside on the man are not entitled to share in the that Carr and
royalty, and therefore issue, which is the issue in the is res warranted, opinion we are not We are concluding of cancellation was the former grounded theory. on that We are afforded no other aid *7 judgment determining the intention author of that gathered allegations of than can be from its terms and the pleadings. light judgment evidences the Read in that the single no more than the fact that the court determined the holding a mineral deed to void. It evidence does not and not entitled in the that Carr were to share royalty, ruling supplies support and therefore no for the judicata. present below that the issue in the action is res judgment As we turn of the former to consideration adjudication as an of of for the cause action a balance claim- ed as due for services rendered under their con- Preslar, tract with which Carr asserted as a previous action, counterclaim the we address ourselves parties. the to central difference the between background That rests this difference fact question litigate law. Without seeks to action phase identical cause action Carr and presented in their counterclaim in the For action. purposes appeal appellants of this that these assume they completed single Preslar, when had their for services or entire cause of action arose in their favor Preslar Payne for of all the consideration he received for the 5% lease over and above the amount of the consideration cash Payne’s original they stated in offer. On that basis assert obligated pay that Preslar was then them $78.25 and to royalty to them transfer 5 of the reserved lease. % recognition principle supra, they of the settled stated con- they split entitled cede were not that cause of action royalty in one claim the cash action and the interest in They subsequent action. assume that their cause merged judgment would have the former if the cause had gone having without counsel made mo- Theretofore, tion to their amend answer. their counterclaim (cid:127) only placed litigation. their had invalidity amendment offered to concede of the mineral place mistake, on of mutual deed money interest and a share whole claim adjudication. the court ruled Because before the court the amendment their Krogman stoutly out, contend adjudica- has been for a share in the claim is not res merits and hence ted on the places hand, ac- his feet on the other cepted principle ais bar even an erroneous Judg- relitigation C.J.S., cf. of a cause to ments, 618, position that if deemed the and takes the ruling amendment, Carr’s court in error Krogman’s its relitiga- remedy by appeal rather than though He asserts that even tion of their cause of action. thought error, it that the is infected with it be relitigation of that nevertheless res and bars cause of action. *8 argument urge language
In the of Judgments, § 67, the of “Where in Restatement as follows: plaintiff an action the court holds that enforce the cannot particular ground a the that he can claim in that on only separate action, enforce preclude in does not it the plaintiff enforcing
the from the claim in another although appears in the second action it that the holding of the court in the first action was erroneous” and language party the of Comment a. follows: “Where a precluded by litigating from in was the court the claim ground litigated first action on the that it in should separate judicata preclude action, the res rules of do not him contrary litigating separate action; from it in on the his litigate separate judicata.” it in is action res study In the course of our have we read the case of Hunt, 340, United Bank & 1 Trust Co. v. 34 Cal.2d P.2d 1001, 1004, wherein it was written: “Where counsel timely pendency notice call to a court’s attention the of covering proceedings other matters kindred and strive to scope inquiry, have the same embraced within the the attempt successfully by opposing counsel, such blocked investigation proceeds specific trial of issue preventing court, counsel who were before the sucessful in issues cannot be the consolidation heard later to ob- ject of res to a trial the related matters pursued by The course court and counsel county express was tantamount to an determ the Butte case part opposing ination on the of the court the consent adjudica counsel to reserve the issues involved.for future Ky. Co., Asher v. G. F. Stearns & [Land Lumber] tion. Litigants sucessfully 292, cannot assume S.W.2d positions.” inconsistent such directly foregoing point are not
While the authorities they exemplify judicata res a limitation the doctrine of analogous in an situation.
Directly
point
Hessin,
46 N.D
is the case Harris
although
179 N.W.
The cause before stands this thing discretion, of a exercise sound we the trial court in granted trial should have the amendment and jurisdiction purpose disposing retained controversy. 33.0904, 33,0911 whole Cf. SDC and 33.0914. express object While the record before us an does not show tion to the amendment it counsel indicates insisting upon judg were then before the court pleadings in their then state. As a re direct *9 ruling Krog sult of the court the claim of Carr and man for interest has never been tried its on merits.
The doctrine of res
which Preslar would
employ to
now
bar such trial
said to rest on
has been
two
maxims, viz., “A man should not be
vexed
twice
public good
same cause” and
is for the
“it
that there
an
litigation.”
Judgments,
Fayer
626;
end
to
Freeman on
Ritch,
58,
weather v.
195 U.S.
25 S.Ct.
It have not intended to foreshadow its merits and the claim on opinion on the merits. an judgment of the trial court is reversed. HAYES, JJ.,
RUDOLPH, J.,P. con- ROBERTS cur. specially.
SICKEL, J., concurs (concurring specially). agree judg- SICKEL, I J. payment of the in this case must be reversed. The acknowledgment nothing more than an sum of was Krogmaii pay agreement five Preslar Carr to re- Preslar was increased consideration which cent of the Payne not an ad- under lease. The ceive might judication become due amounts which royalties. Preslar as a share of the Appellants Respondent, al., BRUINS, et ANDERSON (47 493) N. W.2d 1951) (File Opinion April No. 9156. filed Rehearing May 29, 1951 denied