147 Mo. 639 | Mo. | 1899
— This is an action in ejectment to recover possession of part of a lot in block 31 in McGee’s addition to the City of Kansas. The petition is in common form, the answer a general denial. The verdict and judgment was for the defendants, and the plaintiff appeals.
The defendant Robert Taubman is the landlord and the other defendants his tenants in possession.
Issue was joined upon these allegations of tbe petition, tbe issue found for Mrs. Lynch in tbe 'circuit court and a judgment rendered setting aside tbe tax deed, from wbicb Donnell appealed to this court, where tbe judgment was reversed at tbe April term, 1891. [Lynch v. Donnell, 104 Mo. 530.] Afterwards on the tenth of January, 1895, this suit was instituted. On tbe trial for tbe purpose of invalidating tbe tax deed, tbe defendants were permitted to introduce in evidence the bill of exceptions in tbe case of Lynch v. Donnell, and other evidence tending to prove tbe last allegation in tbe petition in that case, and that issue was submitted to tbe jury on tbe following instruction for tbe defendants.
“1. You are instructed that if you believe from tbe evidence that tbe bidders at the sale on tbe day when tbe land in controversy was sold for taxes bad an agreement or understanding with eacb other to take turns in bidding, and not to bid against eacb other, and that they acted under and carried out such agreement as to tbe property sued for, then your verdict must be for tbe defendants.”
To all of wbicb tbe plaintiff persistently objected and excepted, contending as he still does, that that issue was
I. Counsel for defendants contend that it was not so adjudicated for the reason that the last allegation in the petition in the former case 'was practically abandoned, no evidence introduced on the trial for the purpose of supporting it, and the same was not pressed upon the attention of, nor passed upon by this court in its opinion in' that case. The question passed upon in that case was the validity of the tax deed sought to be set aside. Six grounds were predicated in the petition upon which it was asked that it might be declared invalid. Eive only of these reasons were urged in this court and none-of them being-found tenable, the deed was held to be valid. The defendants in this action now raise precisely the same question by attacking the validity of the same deed, and ask in effect that it be set aside upon the sixth ground of the petition not urged in the former case. And this the trial court permitted to be done. Surely it committed error in so doing unless the maxim nemo bis vexari pro eadem causa, be entirely disregarded. If the reasoning of counsel in support of this second attack be sound, then he would have been in a better position if he had only urged one of the vices charged against the deed in the first suit and reserved the other five for subsequent use as occasion might demand, and thus one’s cause of action might be split up indefinitely in contravention of the well settled doctrine on that subject. [Bank v. Tracey, 141 Mo. 252; Moran v. Plankinton, 64 Mo. 337; Railroad v. Traube, 59 Mo. 355; Wagner v. Jacoby, 26 Mo. 532.] The mistake consists in regarding each issue in the case, as a separate and independent cause of action. The settled law is that the final decree of a court of equity upon a subject in controversy between parties to a suit therein is as binding as would be a judgment at law. [Pennington v. Gibson, 16 How. U. S. 65.] That “Where a given matter becomes the
This is not only the English rule and the rule in this State, but generally “the tendency of the American cases is to regard all the issues which might have been raised and litigated in any case to be as completely barred as if they had been directly adjudicated and included in the verdict.” [21 Am. and Eng. Ency of Law, 216 and 217, and notes.] In Chiles v. Champenois, 69 Miss. 608, it was said: “There is nothing peculiar to the proceeding by bill to cancel clouds upon
2. It is contended, however, that the plaintiff waived this bar by offering evidence and asking instructions on the issue submitted to the jury. Had he voluntarily done so, this might have been the case, but as he was constrained to this course by the adverse rulings of the court he is not precluded from insisting on the error. [Barker v. Railroad, 126 Mo. 143; Tobin v. Railroad, 18 S. W. Rep. 998; Martin v. Railroad, 103 N. Y. 626.]
The judgment of the circuit court is reversed.