First National Bank v. Kingman & Co.

64 P. 65 | Kan. | 1901

The opinion of the court was delivered by

Smith, J.:

This suit involves the application of the doctrine of res judicata. The answer and cross-petition of Kingman & Company in the case of the Chicago Stove Works against it and the First National Bank and others set up the Sharp mortgage and the assignment, together with the note, and alleged its ownership of the same. There was no allegation, however, •that the note was due and payable. In the prayer for relief, Kingman & Company prayed for a decree of foreclosure of said mortgage, conditional on the event that certain other proceedings theretofore had, not necessary to state, were declared to be void, which contingency did not occur. There was a prayer, also, for general relief.

It is asserted by counsel for plaintiff in error that Kingman & Company are now estopped and precluded, by the record in the Chicago Stove Works suit, from bringing the second action to foreclose the Sharp mortgage. The.contention is that Kingman & Company, in its answer and cross-petition to the suit of the Chicago Stove Works, might have obtained all the relief it is now asking — that is, a foreclosure of its mortgage— and that, having stopped short of this, and being content to rest its rights on the decree adjudging its mortgage lien to be paramount to that of the First National Bank, it cannot now maintain this suit to foreclose.

We do not differ with counsel on the proposition of law stated by them — that matters which might have been passed on and litigated in the former suit are considered, when applying the doctrine of res judicata, as having been adjudged. We think, however, that the rule is not applicable to the facts in this controversy. We must presume that the trial court granted to Kingman & Company, under its answer and cross-petition in the former case, the full measure of relief to which it was entitled under the pleadings. To give force to this presumption, we base it on the ground that the Sharp note was not due at the time the cross-petition was filed. While a copy of the note set up as an exhibit shows its maturity, yet the evidence, which is not before us, may have shown a different state of facts. Again, the special prayer for relief, which called for the action and judgment of the court on the note and mortgage, prayed for a foreclosure upon the happening of an event which did not take place. The condition failing, the demand for relief based on that condition failed also. . As before stated, in the former action we think the court did all that it was called on to do by the holder of the Sharp mortgage ; that is, fix its priority with reference to other liens. The judgment of the bank, based on the Ober mortgage, was held to be inferior and junior to the Kingman &, Company (Sharp) mortgage. The priority of such liens was, by the decree in that case, conclusively fixed and established. Beyond this the judgment of the court did not go, and we must presume that it was authorized to proceed no further under the proof. We cannot assume that it denied relief legally due to a party. Cases are numerous where suits have been filed in equity to give effect to a prior decree. (Adams, Eq., 6th ed., 415; Story, Eq. Pl., 5th ed., §429; Wright v. Bowden, 1 Jones Eq. [N. C.] 15, 59 Am. Dec. 600; Root v. Woolworth, 150 U. S. 401, 14 Sup. Ct. 136, 37 L. Ed. 1123.)

The judgment of the court below will be affirmed.