Davis v. Milburn, 4 Iowa 246

Davis v. Milburn

4 Iowa 246

Iowa

1856

Check Treatment

Woodward, J.

Tbe plaintiff sues for rent. Tbe defendant pleads tbat be was interrupted in tbe use and enjoyment of tbe lease, by the operation of tbe plaintiff’s writ of attachment. Tbe plaintiff replies that the defendant has sued and recovered damages for tbat interruption. This reply is in tbe nature of a bar, and not of a set-off. Tbe only question is, whether Milburn can recover damages for tbe interruption, and also plead tbe interruption as an excuse for not paying tbe rent. We think be cannot. Tbat tbe subject matter pleaded is tbe same, is very probable. The amount which be recovered is strong evidence that be recovered for this, for upon an examination of tbe declaration and pleadings in tbe former suit, it would seem impos*250sible to sustain the verdict upon any other assumption. But whether this is so apparent or not, is immaterial. It is sufficient that Milburn included it in his claim for damages, and that it was heard and tried. To the introduction of the record of that former suit, in which Milburn so recovered against Davis, Milburn objects: 1. Because the former suit was not between the same parties with the present one. 2. Because, on the trial of the former cause, the court instructed the jury, that the then plaintiff could recover only for damages sustained by him, prior to the date of the commencement of the action; and that, therefore, the record did not show that his whole claim for damages had been adjudicated.

As to the first of these two grounds of objection. The former action was brought on the attachment bond, against Davis, the principal, with Shepherd and Mayne, his sureties in the bond. It is not true in all cases, that in order to plead a former judgment, both the parties, and all the parties, must be identically the same. Such a case as the present one forms one of the exceptions. Davis was the sole meritorious party in the former action, the others being only sureties on the bond. There was no question of right, title or interest, in which they were conjoint with Davis, to be settled. The only matter of that nature was between Milburn and Davis, and if the original common law order of suing in such a case, still prevailed, this would appear. Then Milburn would have to sue Davis alone, in the first instance, to determine whether the attachment had been sued wrongfully, 'and to settle the damages; and then, if they were not paid, he would sue the sureties, with the. principal on the bond. By the modern practice, we sue on the bond in the first instance. But this mode of proceeding cannot affect the substantial rights of parties in the other bearings of the case. See authorities cited'by appellant’s counsel. The second objection to the admission of the record of the former suit, was that Milburn, in that suit, could not recover for damages accruing subsesequently to the commencement of it. This is true. But *251jet, if be brings bis action too soon, it is bis own misfortune or fault. His cause of action was one and indivisible, and be could not'sue again; and for tbe same reason, be cannot make tbe use be now seeks, of tbe subject matter of it. It appears perfectly manifest that Milburn cannot both recover for tbe interruption of tbe use by Davis, and also refuse to pay rent for tbe use. Tbis would be equivalent to recovering twice for tbe same thing. And on tbe first point, tbe case put by plaintiff’s counsel, is pertinent. If two commit a trespass, and are sued jointly, and there is a joint judgment, can one be afterward sued, and deprived of tbe right to show the former recovery, because tbe parties are not tbe same? Tbe record should have been admitted in evidence. !

The next error is assigned upon tbe following instruction, given by tbe court, at tbe request of tbe defendant“ If Milburn struggled ineffectually to run the mill, during tbe time sued for, but failed to do so with profit or success, on account of tbe wrongful suing out of tbe attachment, then tbe verdict should be for tbe defendant.” This instruction was given upon the basis that tbe record of tbe former suit could not be made evidence as a bar, and that Milburn might yet recover further for the same cause of action, though for damages accruing subsequently to tbe former suit; and as this was an error, so was tbe giving the instruction, however correct it might have been in the former suit. Upon tbe same ground, that is, tbe ruling of the court that tbe former cause of action could be inquired into in tbis suit, tbe plaintiff requested tbe court to instruct that tbe suing out tbe attacbment must be willful, as well as wrongful, in order ti> constitute a ground of aetion or defence, which'the court rightfully refused. The plaintiff further requested tbe court to instruct, that if the plaintiff believed that tbe defendant was about to dispose of bis property, &c., be bad a right to sue out tbe attacbment. The refusal of both thése instructions was correct, upon tbe ground that tbe former suit could not have been inquired into, having been previ*252ously disposed of. As to tbe doctrine of these instructions, see tbe case of Mahnke v. Damon & Co., 3 Iowa, 107.

The judgment of tbe District Court is reversed.