147 Ky. 222 | Ky. Ct. App. | 1912
Opinion op the Court ry
Reversing.
Appellee, James Stacy, claiming to be the owner by adverse possession of a tract of about 900 acres of land in Perry County, Kentucky, brought this action against appellants, S. B. Combs and Anderson Combs, to enjoin them from trespassing on the land and cutting the timber therefrom, and to recover damages for certain timber which he alleged they had already cut. Appellants denied appellee’s title, and pleaded title in themselves. Appellee by reply denied appellants’ title, and pleaded a judgment rendered by the Perry Circuit Court in the action of Anderson Combs and S. B. Combs v. Riley Combs and William Stacy in bar of a recovery by appellants, alleging that he was the real party in interest in that action, and that the timber involved in that action was cut from the same land involved in this action; that the action was between the same parties and involved the same subject matter, and that the judgment was conclusive of appellants’ rights to the land herein involved. The allegations of the reply were denied by rejoinder. Proof was taken, the case submitted, and judgment rendered in favor of appellee. Prom that judgment this appeal is prosecuted.
It appears that appellee claims title by virtue of a patent issued to Shadrach Stacy upon a 500 acre survey made in the year 1847, and by deed from Shadrach Stacy’s heirs made in the year 1883. He also claims under a 200 acre patent issued to him in 1871, and another patent for seventy-five acres issued in 1903. Appellants claim under a 400 acre survey made in 1848, and patented to Archibald Cornett in the year 1850. The evidence leaves no doubt that the timber was cut from land embraced in the Archibald Cornett patent and out
But it is contended that the judgment in the case of Combs, et al. v. Stacy, et al., pleaded in bar, is conclusive in this action. While there are expressions to be found in the books to the effect that a judgment is conclusive not only upon the questions actually contested and determined, but upon all matters which, under the issues, might have been litigated and decided in that suit, this statement is true only in the case where the prior judgment is offered as a bar to the second suit upon the same cause of action, or involving the same subject matter and not where the subject matter of the
From the foregoing, it follows that judgment should have gone in favor of appellants.
Judgment reversed and cause remanded with directions to enter judgment in conformity with this opinion.