80 P. 568 | Kan. | 1905
The opinion of the court was delivered by
The Remington Paper Company held several notes executed to it by the Topeka Capital Company, a Kansas corporation. In April, 1897, it brought an action upon them and recovered a judgment. The defendant instituted proceedings in error in this court, but gave no bond to stay execution. Dur
In February, 1900, by a decision of this court, the judgment against the Capital company was reversed. (Capital Co. v. Remington, 61 Kan. 6, 59 Pac. 1062.) Such reversal was pleaded by Hudson in a supplemental answer filed in the action against him. That case being called for trial, it was admitted in open court that the allegations of the supplemental answer were true, findings were made that the judgment upon which the action was based had been reversed, and that plaintiff was not entitled to recover, and thereupon judgment was rendered for the defendant for costs. The plaintiff prosecuted error from this judgment, complaining of the ruling of the* district court in refusing to allow it to- change its action from one under section 1192, supra, to which a judgment and execution against the corporation were prerequisite, to one under sections 1200 and 1204, supra, based upon
The plaintiff then began a new action under sections 1200 and 1204, declaring upon the notes, the cessation of business by the Capital company, and the defendant’s ownership of stock therein. The defendant pleaded substantially the facts already recited. Prior to the trial the plaintiff, having in the meantime procured a new judgment oh the notes against the corporation, set out that fact in a supplemental petition. Upon final hearing the plaintiff was given judgment, which it is the purpose of the present proceeding to review. Under various specifications of error two principal contentions are made: (1) That the plaintiff is precluded from resorting to the remedy under sections 1200 and 1204, now invoked, by having in the earlier proceedings elected to pursue the inconsistent remedy afforded by section 1192; (2) that the judgment rendered in the former action was a final adjudication of the matter sought to be litigated here.
So far as relates to the matter of estoppel by the prior election of an inconsistent remedy there is nothing to distinguish the present case from Thomas v. Remington, 67 Kan. 599, 73 Pac. 909. Following the decision there made we hold that, although so long as the judgment stood that was rendered in favor of the Remington company against the Capital company the notes upon which it was based were by the principle of merger rendered unvailing as any part of a cause of action, and the attempt to enforce it through the provisions of section 1192 precluded recourse to sec
From the facts already stated it appears that, prior to bringing this action, the same plaintiff had brought against the same defendant an action to enforce the payment of the same debt against the same corporation by reason of the defendant’s holding the same stock; that the question whether defendant was liable as a stockholder was put in issue in that case; that a final judgment was rendered against the plaintiff that it take nothing by its action, and in favor of the defendant for his costs. In support of the plea of former adjudication it is argued that this judgment was a final determination of the matter here involved and estops the plaintiff to assert any further claim against the defendant with respect to it. The argument is not tenable. Notwithstanding the resemblance the present proceeding bears to the former one, it is not based
“Even where the matter was in issue, if the issue was not determined, by reason of the decision turning upon some other point, or otherwise, there is no estoppel.” (24 A. & E. Encycl. of L. 776.)
The entry of judgment in the first action recites a specific finding that the judgment upon which it was based had ceased to exist, and is silent as to any other controverted matter. This finding alone compelled the judgment which was rendered — a judgment for the defendant for costs. It is a fair implication, although
The judgment is affirmed.