226 N.W. 412 | Minn. | 1929
1. The cases on the subject are in a degree of confusion due in part to the always regrettable but unavoidable failure of judges to agree, but in greater part to their more regrettable but avoidable failure, in considering the problem, always to make clear that there are two quite distinct methods whereby a former judgment becomes an insurmountable obstacle to one or more of the parties thereto or their privies in subsequent litigation. "There is a wide difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand and its effect as an estoppel in another action between the same parties upon a different claim or cause of action." In the latter case the judgment in the first suit does operate as an estoppel, butonly as to any "point or question actually litigated and determined." 15 R.C.L. 962, 973; O'Brien v. Manwaring,
The argument for defendant is that the findings supporting her decree for limited divorce negative misconduct on her part — that the judge could not have reached in that case the conclusion he did without having considered whether the wife had been guilty of misconduct and without determining that she had not. In that we cannot agree. The doctrine of res judicata is to be applied with caution. 3 Dunnell, Minn. Dig. (2 ed.) § 5160. The burden is upon the litigant who invokes a prior judgment as a bar or estoppel to plead and prove it. Andrews v. School Dist. No. 4,
2. There remains to consider whether the judgment in the former case is a judicial negation of the cause of action plaintiff now asserts and so "conclusive evidence" of its nonexistence. A judgment against the wife in her action for absolute divorce on the ground of cruel and inhuman treatment is such a judicial and final negation of the cause of action and the asserted ground for it as to bar a subsequent action for limited divorce on the same ground. Wagner v. Wagner,
The general rule is frequently stated, as it was in Kinzel v. B. D. F. L. Co.
A plaintiff may, within conventional limits, select the time and place for the litigation of his cause of action against the defendant. But he has no right to compel the latter to litigate his own causes of action at the same time and place or impose as a penalty for the defendant's refusal to do so the bar of former adjudication. The proposition was established for this court in Jordahl v. Berry,
"Negligence or want of skill in the performance of services, resulting in damages to the employer, creates an affirmative cause of *7 action in his favor, the moment the negligent or unskillful act is committed; that this cause of action, like every other one, carries with it the right of the party to sue on it and put it into judgment in his own way; that one cause of action cannot, in and of itself, when merged in judgment, carry with it another cause of action, however closely the two may be connected; that, where a defendant has a cross claim, he may set it up as a defense or counterclaim, but is not bound to do so, although the two causes of action grow out of the same contract."
A decree of absolute divorce establishes necessarily the nonexistence of any defense or grounds for a cross-bill. Moreover, it forever ends the contract of marriage and the resulting status out of which such a defense or cross-bill would arise and without which neither can exist. The action for limited divorce under our statute is something very different. Kunze v. Kunze,
So we consider untenable the argument that the defendant therein, plaintiff here, was under any duty either to defend or counterclaim on the ground of his wife's alleged misconduct and that, not having done so, he is barred of his cause of action if he has one. In Watts v. Watts,
Judgment reversed.
HOLT, J.
I dissent. *9