113 Ind. 139 | Ind. | 1888
Appellant instituted this suit against the city of Huntington, Max Baumgartner and Jacob Nier, and alleged in his complaint that they were improving a public street, and so extending the improvement as to include a, strip of his land six feet wide, which is not a part of the street. He seeks an injunction to prevent them from going-upon and improving that strip of land as a part of the street.
The theory of his complaint is, that th.e city has no-authority to extend the improvement over the strip of land claimed by him. In other words, the complaint calls in question the right and authority of the city to so extend the improvement as to cover the strip of land in dispute. To have, it adjudged that the city has not such authority is the manifest purpose of the comidaint.
To the complaint the defendants filed a joint answer of former adjudication.
The substance of the answer is, that, in 1883, in a suit in which appellant was plaintiff and the city of Huntington and its civil engineer, Patrick O’Brien, were defendants, the identical matters set up in the complaint in this suit were litigated, adjudicated and settled against appellantand in favor of said defendants, and that they had judgment for costs; that-the defendant Baumgartner is the marshal and Nier an employee of the city of Huntington, acting under its authority and direction in the making of the improvement.
The only objection urged to the anstver, and hence the one to which we limit the decision, is, that it shows upon its face that the parties to the different suits are not the same.
It is argued that because Baumgartner and Nier were not
The city is the real party in interest. The other defendants were its servants merely, acting under its authority and •in obedience to its directions.
If the city has authority to make the improvement upon the strip of land which appellant claims, they were neither doing, nor threatening to do, a wrong. That the city has authority to make the improvement would be a complete defence for them. They might show that it has such authority by pleading the facts. That, however, is not necessary here, for the reason that the right and authority of the city to make the improvement were settled in the former suit. That adjudication is conclusive against appellant, not only as to the city, but also as to the other defendants here, its servants and agents, acting under its authority and direction in the making of the improvement. This conclusion is fully sustained by the case of Lea v. Deakin, 11 Biss. 23. The plaintiffs in that case were the manufacturers of a sauce called the “Worcestershire Sauce,” in Worcestershire, England. The defendant, a resident of the State of Wisconsin, had been in the habit of receiving from England a sauce somewhat similar to that of the plaintiffs’, which is called the “ Improved Worcestershire Sauce,” prepared by Richard Millar, of London. The defendant was the agent of Millar for the sale of the sauce in Wisconsin and other States. The suit was for an injunction against the defendant to prevent him from selling the sauce as “Worcestershire Sauce,” and from using the term “ Worcestershire Sauce,” the plaintiffs claiming that they had a right to it as a trade-mark, and that no one else could use it without their consent. Upon the trial of the cause it was shown that before the commencement of the suit the plaintiffs had filed a bill in chancery, in England, against
There was no error in the overruling of the demurrer to the answer.
It is further argued by counsel for appellant that the record of the judgment in the former suit, introduced in evidence in this, does not show such an adjudication as ought to bar a judgment against appellees, and that, therefore, the finding and judgment by the court below are not sustained by sufficient evidence.
The evidence of the former adjudication is not the only
Because of the other evidence upon which the judgment may well rest, it is not necessary for us to determine whether or not the evidence of the j udgment in the former suit is such as of itself to bar this suit.
Judgment affirmed, with costs.