184 P. 275 | Or. | 1919
Lead Opinion
This is an action for the possession of one bond of the Medford Printing Company of the par value of $100. There are seven other like bonds in the same condition. The complaint is in the usual
The facts out of which the case arose are substantially as follows: On May 4,1910, J. F. Eeddy and John E. Allen gave the plaintiff their promissory note for $3,487. Thereafter, plaintiff commenced an action on the note and attached certain property belonging to Allen and Eeddy. In order to obtain the release of the attachment and a dismissal of the suit, J. F. Eeddy and Mary F. Reddy gave to plaintiff their note for $3,662.75, being the amount of the Allen-Eeddy note and interest and costs of the action. This note was held as collateral for the original Allen-Eeddy note. Payments were made and credited upon it from time to time, and it was renewed at different times. In the meantime John E. Allen had made an assignment of his property to certain trustees for the benefit of his creditors. Among the property so assigned were certain bonds in the Medford Printing Company, of which those in controversy were a part. On December 12, 1911, the trustees of John E. Allen being unable to sell these bonds advantageously, distributed the bonds among the creditors as a dividend on the basis of their value being 90 per cent of par. Plaintiff as its dividend on the Allen-Eeddy note received $800 par value of these bonds, 90 per cent of which is $720, and $26.43 in money to equalize its dividend. Plaintiff credited the cash payment on the collateral note of Eeddy and wife, but held the bonds claiming the same to be collateral security without crediting the value of the bonds. In September, 1914, plaintiff commenced an action against Eeddy and wife on the last renewal of
“Now the evidence that was offered tends to show that a certain amount was received in money on the indebtedness and a certain amount in bonds of the Tribune Printing Company. I say, that there was on the indebtedness, I will withdraw that and say that the evidence tends to show that a certain amount of money was paid and a certain amount of bonds were given as a result of this trust agreement — that is the dividend that was coming to the plaintiff on this trust agreement. The defendant contends that both the money that was paid and the value of the Tribune bonds should be indorsed on this note as payment or on this indebtedness as payment. The plaintiff, on the other hand, contends that the understanding was*659 that the money received should he indorsed on the indebtedness hut that the Tribune bonds that were received should be held and any moneys received from them should. be indorsed on the indebtedness and whenever the note was paid in full, that is, the note that is sued upon here is paid in full, that if the bonds had not been paid that they should he turned hack to Dr. Reddy.
“There is a direct issue on that question and it will he for you to decide whether or not the value of the bonds should be indorsed on the indebtedness or should be disregarded by you. If the plaintiff’s contention is true that they simply hold the bonds as collateral for the notes and that the bonds had not been sold or reduced to cash they should not he indorsed on the note. If the defendant’s contention is true that the bonds were accepted as cash payment then of course that • amount should be deducted from the amount due on the note. ’ ’
No other evidence was offered by the defendants Reddy tending to show any other payment ever having been made upon the notes which had not been credited. The jury returned the verdict for $3,210.17, including interest and attorney’s fees, for which judgment was entered on February 29, 1916. Upon the trial of the present case, the plaintiff offered in evidence the record, in the former action on the note in the case of Farmers & Fruit-growers’ Bank v. J. F. Reddy and Mary F. Reddy, for the purpose of showing that the verdict and the judgment established the fact as between plaintiff and the Reddys that the bonds were received by the bank as absolute payment on the AllenReddy note and on the collateral note of Reddy and wife, and that credit was given therefor by the verdict of the jury, and judgment rendered thereon.
After the rendition of the judgment in the action on the note and for the purpose of inducing the defend
“It is hereby agreed between Mary F. Eeddy and J. F. Eeddy, parties of the first part, and Farmers and Fruit-growers’ Bank, parties of the second part:
“That the.judgment held by the Farmers and Fruit-growers’ Bank against the Eeddys shall be paid.
“Two: That the bonds of the Medford Printing Company in the amount of eight hundred dollars shall he delivered by the Bank to F. Eoy Davis, and that thereupon the Farmers and Fruit-growers’ Bank sh°all commence an action in replevin for the said bonds against said Davis; that in said replevin action said Davis shall have the right to set up as defense any right or claim which the Eeddys have to the bonds and employ W. E. Crews to defend the case without cost to F. Eoy Davis.
“It is the intention that in said replevin action the respective rights of the Farmers and Fruit-growers’ Bank and the said Eeddy shall be determined, the Farmers and Fruit-growers ’ Bank assuming that burden of the plaintiff and that the transfer of ,the bonds to said Davis and the payment of the judgment by said Eeddy shall in no manner affect the rights of either party to said bonds.
“It is further agreed that this agreement shall in no way legally affect the replevin action on trial or the manner of its appeal.”
Pursuant to this stipulation the bonds were turned over to the defendant Davis by plaintiff. Formal demand for their return was made and refused, and this action was commenced. Some preliminary questions are submitted in a rather irregular way. They should properly have been presented before the time of the argument upon the merits.
Eule 23 of this court, 89 Or. 720 (173 Pac. x), of date September 2,1’918, provides among other things that—
*661 “All motions must be filed within ten days after a party or Ms attorney obtains knowledge of an alleged failure of the adverse party or his attorney to comply with the requirements of the statute or with the rules of this court, and unless so filed all defects, except objections to the jurisdiction of the court, will be taken as waived by the moving party.”
Subdivision 1 of Section 550, L.' O. L., provides that—
“Such notice shall be sufficient if it contains the title of the cause, the names of the parties, and notifies the adverse party or his attorney that an appeal is taken to the supreme or circuit court, as the case may be, from the judgment, order, or decree, or some specified part thereof.”
It was held in Fraley v. Hoban, 69 Or. 180 (133 Pac. 1190, 137 Pac. 751), that a notice of appeal which correctly specifies the court in which- the judgment was rendered, gives the names of the parties to the action, the date of the judgment, and informs the adverse party that an appeal from the judgment has been taken, is sufficient without any other description. And in Holton v. Holton, 64 Or. 290 (129 Pac. 532, 46
In the present case, the undertaking upon appeal, which was served upon the defendant, recites that the appeal of the above-entitled action is to the Supreme Court of the State of Oregon. The notice of appeal substantially conforms to the statute and was sufficient to inform the respondent and his counsel that an appeal was to be taken from the judgment mentioned therein. The point is not well taken.
Considering the case on the merits — a careful computation of the interest on the note sued upon in the former action plainly shows that the $720, the value of the bonds in question, was credited by the jury upon the note. There was a slight discrepancy in the figures, but it is not material. Objection was made by counsel for defendant to the introduction of the record of the former judgment as evidence for plaintiff which was sustained by the court. It was admitted temporarily, but the certificate of the trial judge states that the objection to the introduction of that record was sustained for the reason that the judgment in the former action was not pleaded by plaintiff as an estoppel or bar to the present action, to which ruling counsel for plaintiff duly saved an exception. Plaintiff asked permission to file an amended complaint setting up ,tke estoppel which was denied by the court over the exception of counsel for plaintiff. Tbis is the main question for determination in tbis case.
“A former judgment on the same cause of action, being a complete bar to a second action, must always be pleaded by way of defense: Bowe v. Minnesota Milk Co., 44 Minn. 460 (47 N. W. 151.). But a former-judgment is no bar to a second suit upon a different cause of action. It merely operates as conclusive evidence of the facts actually litigated in the first action, and upon the determination of which the finding or verdict therein was rendered, and need not be pleaded any more than any other evidence. In such a case it is proper for a party to plead his cause of action or defense in the ordinary form, leaving the judgment to be used in evidence to establish his general right.”
In Krekeler v. Ritter, 62 N. Y. 372, 374, the court uses the following language:
“The record of the Superior Court was not offered or received in evidence in bar of the action, but merely as evidence of the fact in issue. Had it been offered .as constituting a bar, or as an estoppel to the action, it would have been inadmissible, not having been pleaded as a defense. (Citations.) But as evidence of a fact in issue it was competent although, not pleaded like any other evidence, whether documentary or oral. A party is never required to disclose his evidence by his pleadings. The evidence was competent to disprove a material allegation of the complaint traversed by the answer. As evidence it was conclusive as an adjudication of the same fact, in an action between the same parties.”
“When the second action between the same parties is upon a different claim or demand, or cause of action, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined, and not as to other matters which might have been litigated and determined. This rule holds true whether the judgment is used in pleading as a technical estoppel, or is relied on by way of evidence as conclusive per se. In all cases it should appear that the first judgment determined the actual question at issue between the parties, and that the precise question was raised and determined in the former suit. On the other hand it is equally well settled that a fact which has been directly tried and decided by a court of competent jurisdiction cannot be contested again between the same parties in the same or any other court, and that where some controlling fact or question material to the determination of both actions has been determined in a former suit, and the same fact or question is again at issue between the same parties, its adjudication in the first will if properly presented be conclusive of the same question in the latter suit, without regard to whether the cause of action is the same or not, or whether the second suit*666 involves the same or a different subject matter, or whether or not it is in the same form of proceeding.”
Concurrence Opinion
Specially Concurring. — In this case I concur with the opinion of Mr. Justice Bean as to the admissibility of the judgment transcript of the previous trial in the action by the plaintiff against Allen and Reddy, but I think the case should be reversed and remanded for a new trial. I do not wish to concur in the implied construction of Section 3 of Article VII of the Constitution of Oregon, adopted in 1910.