*1 to whether exists as factual issue also claims a White William $51,000 note. under the to advance promise made a bank value of the entire face White, admits deposition, in his William Therefore, whether the irrelevant it is was advanced. the note $51,000; promise was satisfied advance promised bank Therefore, no there is was advanced. entire amount when the by this issue. raised of fact question reasons, of the district the order foregoing For Bank is Five Points favor of summary judgment granting affirmed.
Affirmed. Plymouth, appellee, Farmers State Bank of L. appellants. Germer et al., Gerald 24, 1989. Filed March No. 87-628. *2 Gibson, Legal Associates
Robert R. of Professional Nebraska, P.C., appellants. W. Kerl for and Jerald
John Guthery M. Gregory Perry, Perry, Perry, H. Witthoff, Guthery, Gessford, P.C., Haase & appellee. JJ., Fahrnbruch,
Boslaugh, White, Shanahan, Hannon, D.J. J.
Boslaugh, ejectment brought by the action in appeal an an This is defendants, Gerald against the Farmers State plaintiff, evidence, the trial At the close of the and Eldora E. Germen L. directed verdict motion for a court sustained have for the The defendants rendered appealed. financing
The case arises out of transaction 19,1984. into December defendants entered County, for number operated a farm in Jefferson through years operations and financed their executed a December bank. On $282,642.85, payable promissory note in amount of *3 by security agreement which was secured a on their plaintiff, quarter a of equipment and deed trust on a section farm by payable was on farmland. The note its terms due and 31, pay the December When the defendants failed to 1985. note, pledged plaintiff equipment demanded of the the return security agreement replevin under and a action the commenced 7, 15, 1987, August January trial on 1986. On the court summary the motion for in the sustained replevin possession property awarded of the to the and court, Thereafter, plaintiff. appealed the defendants to this but 2, 1987, appeal pursuant was on June to the the dismissed 27,1987. stipulation May in parties the filed this court on trust, Pursuant to the terms of the deed of the land described 22,1986, by plaintiff April therein was sold the trustee to the on a and deed delivered to the action was This 8, September 1986, possession the commenced to recover property. counterclaim,
In second their amended answer and the alleged they defendants that the deed of trust which executed on by December was void it had been because obtained plaintiff through the representations false made concerning president plaintiff necessity for a real 3,1984; mortgage January estate executed on through promise plaintiff a false that the would continue to defendants; duress, through extend a line of credit and threatening mortgage January and foreclose a security agreement to execute the if defendants refused note, trust, promissory security agreement deed and which 19,1984. signed on December assignment is that the defendants’ first of error trial summary granting partial erred in a court finding that their defenses were barred under doctrines of estoppel by collateral reason in replevin action.
In the answer and
defendants filed
counterclaim which the
in
case,
they alleged
concerning
the same facts
fraud
and economic duress as
their second
answer and
amended
action,
plaintiff
counterclaim in
In the
this case.
plea
a
alleged
filed
abatement which
before the
commenced,
suit had been
filed a complaint
defendants had
adversary
in the U.S. Bankruptcy
proceeding
Court as an
against
sought
the same
facts,
relief
the same
that the
pending
bankruptcy
then
in the
court.
court
The trial
sustained
plea
in abatement
dismissed
31,1986.
prej
counterclaim without
udice on December
Generally, the pendency of a former action for the same
cause between
and in
Miller,
good
plea
constitutes a
abatement. Miller
rule,
general
As a
where a
in prior
would be a
suit
bar to
brought
suit
second
in the same or another court of concurrent
jurisdiction,
plea
abatement
should
sustained.
*4
Shull,
Bank
v.
National
Commerce T. & S. Assn.
195 Neb.
of
590, 239
exist,
N.W.2d
(1976).
505
Where two remedies
and the
proceed
whose favor
exist elects to
for the
therefor,
proceeding
enforcement of one and institutes a
he
proceeding
avail
the other
is
cannot
himself of
while such
State,
Olson,
721, 151
Claney, Neb.
N.W.
pending.
ex rel.
v.
97
purpose
abating a civil action
to
(1915).
155
The main
of
is
litigation. Cahoon v.
prevent unnecessary or vexatious
First
462,
theory
(1924).
Nat.
112 Neb.
our Olson, Claney, supra. v. rel. counterclaim, filed original answer
In both their answer, February 18, 1986, filed amended their November sought damages on the basis of 4,1987, the defendants in their answer and allegations and duress made of fraud 10,1986, on November in the counterclaim filed 31, 1986, damages. they sought On December for plea in abatement to trial court sustained 18, 1986, grounds upon November counterclaim filed day. the order in the case made 7, 1987, part trial sustained a of April On by allegations relating to striking strike plaintiff’s motion to 4, February filed made in the amended answer fraud and duress seeking damages 1987, part striking prayer fraud and duress. summary partial a On June trial court entered attempt finding plead to fraud that the by barred and economic duress was judicata estoppel. and collateral case under the doctrines of competent judgment on the merits in a court of A final any litigation upon is jurisdiction conclusive Moore, 228 cause action. Carroll v. Neb. involving the same (1988). N.W.2d 757 question litigated on its merits settled as to A of fact once is directly litigants may relitigated collaterally not or Management, litigants privies. or Davis Inc. v. their Sanitary Improvement Dist. 204 Neb. & No. (1979). judicial determination not conclusiveness affected in which it was the kind form action object litigation made or difference form or adjudication made in which res which the and that Cargile, v. pleaded. Kuhlman judgment on Where a the merits is rendered favor of one party in an action enforce one of two or more alternative remedies, party the other cannot thereafter maintain an action Cargile, supra. to enforce another of remedies. Kuhlman *5 fact, Any directly right, adjudicated or matter issue and in, upon, necessarily or involved the determination of an action competent before a court which a or decree is conclusively rendered the upon merits is settled the again litigated parties therein and cannot between privies, demand, purpose, subject whether the claim or Cargile, matter of the two suits is the same or Kuhlman not. supra. judicata
The applies doctrine when the same cause of sought litigated action is to be a second time. Whether the subsequent alleges suit prior cause of action as the suit right is sought determined whether the to be vindicated rests upon operative so, facts. If the same cause of action alleged, has been even if of recovery different theories relied are upon. Waggener, Graham v. 219 Neb. judicata
Res upon principle rests final on competent merits a court jurisdiction is conclusive upon any litigation involving later the same cause of action. Graham v. Waggener,supra. of the district court in a former action final every
as to every issue there decided and other issue could which have been decided in case. This rule of res grounded public policy necessity litigation to end the hardship imposed person by being on a vexed twice Hamilton, same cause. Caradori v. 227 N.W.2d 850 (1975).
A jurisdiction of a of competent upon question directly involved one suit is conclusive to that as question in another between parties. suit Coon v. O’Brien, 107Neb. N.W. 340 (1922). security agreement which basis for was the
action and the deed of trust is the basis for the transaction, title in were part financing this case all transaction which the defendants entered into on December duress, deed 1984. If the of trust was void because fraud and case, security agreement in this then the involved in validity case was void for the same reason. The security agreement case, was established in attempting the defendants from that case bars judgment upon in this case validity deed of trust litigate *6 replevin case. alleged in the grounds parties in between the same the same issues Determination of First Cahoon v. unnecessary and vexatious. different courts is (1924). N.W. 830 112Neb. Nat. attempt to describe
Regardless of how they case, the fact is that allegations in this categorize their alleged in that were the same basic facts attempt to succeed on to applicable The doctrine of res case. counterclaims, setoffs, alleged as a defenses, and an issue may interposed adjudicated prior action not in a defense action or defense. Simmons subsequent action as a cause of in a Assn., 186 Neb. 180 Health & Acc. v. Mutual Benefit assignment of error is The defendants’ first merit. without to the assignment of error relates
The second verdict, sustained at the close a directed which was motion for found, dispute there was no As the trial court of the evidence. necessary plaintiff to concerning any the facts it had title to the plaintiff The had established that succeed. land, possession, and that that the defendants were plaintiff The possession to the refused to surrender verdict, and there was no error entitled to a directed sustaining plaintiff’s motion. judgment affirmed.
The Affirmed. Hannon, D.J., dissenting. respectfully dissent. Before I entered, allegations defense of the affirmative action was upon fraud and economic counterclaim that were founded because these issues prejudice, were dismissed without duress adversary being litigated in an were then opinion following bankruptcy. I am of the that (1969) is the correct rule: Judgments 46 Am. Jur. 2d § from prejudice” “without general The rule that a judicata applies to a operate does not rights to the of the defendant. prejudice rendered without affirmative that the merits of Such a shows up by determined, matter set the defendant not have been adjudicate accordingly may and that defendant such subsequent brought by matter in a him. This is true judgment dismissing as to a to a cause as rights “without prejudice” of such against any defendant other to the action. applies interposes rule also where the defendant counterclaim and a is rendered favor of the plaintiff prejudice” “without to the counterclaim asserted matters, respect defendant. With to such stands, respects, defendant all ifas he had never been a party to the action. showing made no the issues of fraud and
economic actually litigated by court, duress were bankruptcy and the defendants have right litigate thus been denied a these issues. *7 appellant. Englehart, appellee, Nebraska, v. Chris State appellant. Vicky Englehart, appellee,
State 437 N.W.2d 24, 1989. 88-017, 88-018. Filed March Nos.