Johnstone v. Chapman Timber Co., 156 P. 286

Johnstone v. Chapman Timber Co.

156 P. 286 | Or. | 1916

Mr. Justice Bean

delivered the opinion of the court.

Counsel for defendants timely interposed a motion for a nonsuit and one for a directed verdict in favor of defendants upon the grounds, among others: (1) That there was not sufficient evidence against the defendants to submit the case to the jury; and (6) that the evidence and pleadings show that another suit was started in this court and was compromised and settled between the parties, that there was an order of dismissal “with prejudice” to any future action, that the *679judgment is an adjudication of this case just as though there had been a verdict of the jury, and that it cannot be attached by a collateral proceeding, and only by a suit in equity to set the same aside, and that the former order is a bar to this action.

1. The first question for consideration is the former judgment upon the stipulation of the parties after a settlement of the matter. The first action instituted by the plaintiff against the Chapman Timber Company is conceded by all to have been for the same cause of action as the present one. With the exception of the change in the name of the defendant company, as alleged by the plaintiff, the parties to the two actions are the same. After the commencement of the former proceeding the plaintiff made a settlement with the Chapman Timber Company on April 30, 1913, and in consideration of the sum of $750 executed to defendant an instrument in writing under seal releasing and discharging the company from all liability, and acknowledging full satisfaction and discharge of all claims accrued or to accrue in respect to all injuries or injurious results directly or indirectly arising or to arise from the said accident and injuries sustained by plaintiff on November 21, 1912. This settlement was made contrary to the advice of the attorneys who represented the plaintiff in that action, one of whom states that he told him he would be a cripple for life. Thereupon the attorneys for the respective parties on May 2, 1913, made and filed in that cause the following stipulation:

“Whereas, the above case has been fully settled and compromised by and between the parties hereto: It is therefore stipulated and agreed that the above case be, and the same is hereby, dismissed, with prejudice to future actions, and this is to authorize the attorney for *680the defendant to secure the necessary order of dismissal.

“Oren R. Richards,

“Attorney for Plaintiff.

“F. S. Senn,

“Attorney for Defendant.” •

On the same date the court entered the following judgment:

“Based upon the stipulation of the parties to the above-entitled action, and it appearing that same has been fully settled and compromised, it is therefore ordered and adjudged that said cause be, and the same is hereby, dismissed, with prejudice to any future action.”

This judgment has not been vacated nor annulled in any way. All the proceedings in the former action are set up by the answer as a bar to the present case. An action at law is disposed of either by a judgment in favor of plaintiff or defendant or one of nonsuit: Hoover v. King, 43 Or. 281, 286 (72 Pac. 880, 99 Am. St. Rep. 754, 65 L. R. A. 790); Mulkey v. Day, 49 Or. 314 (89 Pac. 957).

Section 182, L. O. L., provides that a judgment of nonsuit may be given against the plaintiff:

“1. On motion of the plaintiff, at any time before trial, unless a counterclaim has been pleadedjas a defense ;

“2. On motion of either party, upon the written consent of the other'filed with the clerk,-

“3. On motion of the defendant, when the action is called for trial, and the plaintiff fails to. appear, or when after the trial has begun, and before the final submission of the cause, the plaintiff abandons it, or when upon the trial the plaintiff fails to prove a cause sufficient to be submitted to the jury.”

Such a judgment is not a bar to another action for the same cause: Section 184, L. O. L. The former *681judgment does not come within either class defined by Section 182. It is a full and complete adjustment of the matter in controversy between the parties, and has the same effect as though it had been entered in favor of plaintiff for the sum of $750, and then satisfied upon payment of that amount, and is a bar to the present action. It is stronger in detail than a retraxit or open voluntary renunciation in court of any claim against defendant by which plaintiff forever loses his action: 3 Blackstone’s Commentaries, 296; United States v. Parker, 120 U. S. 89, 95 (30 L. Ed. 601, 7 Sup. Ct. Rep. 454); Merritt v. Campbell, 47 Cal. 543; Hoover v. Mitchell, 25 Gratt. (66 Va.) 387; Wohlford v. Compton, 79 Va. 333; Ford v. Roberts, 14 Colo. 291 (23 Pac. 322); Phillpotts v. Blasdel, 10 Nev. 19. In United States v. Parker, 120 U. S. 89, 95 (30 L. Ed. 601, 7 Sup. Ct. Rep. 454), on motion of defendant’s attorneys of record, the following judgment was made and entered:

“ * * It appearing to the court that the subject matter in this suit has been adjusted and settled by the proper parties, * * it is therefore ordered that this cause be, and the sáme is, hereby dismissed.”

This was held to be a judgment on the merits, final in form and nature, and a har to a subsequent suit against the defendants for the same cause of action. The stipulation of the parties by their respective attorneys takes the place of evidence and a verdict, and fully authorized the court to enter the judgment.

2. The record does not show that the former judgment has ever been impeached or set aside. "We therefore have two judgments both involving the same parties, the same issues, and each of equal solemnity, one showing a complete settlement and adjudication of the matter in controversy, and the other showing an un*682satisfied judgment in favor of plaintiff. The second action cannot be maintained until the first judgment has been vacated or annulled. The complaint in the present case seeks to avoid a settlement and release, but wholly ignores the former judgment, upon which it is plainly a collateral attack. A judgment of the class to which the one in question belongs is “in respect to the matter directly determined, conclusive between the parties and their representatives and successors in interest by title subsequent to the commencement of the action, suit or proceeding litigating for the same thing, under the same title, and in the same capacity. ’ ’ A collateral attack on a judgment or decree is any proceeding which is not instituted for the express purpose of annulling, correcting or modifying such judgment: Morrill v. Morrill, 20 Or. 101 (25 Pac. 362, 23 Am. St. Rep. 95, 11 L. R. A. 155); Purdy v. Winters’ Estate, ante, p. 611 (156 Pac. 285). The lower court erred in not holding that the former judgment was a bar to the present action. Our views upon this question render it unnecessary to consider the other errors assigned in the case.

It follows that the judgment should be reversed and the cause remanded for such further proceedings as may seem proper, not inconsistent with this opinion.

It is so ordered. Reversed and Remanded.

Mr. Chiee Justice Moore, Mr. Justice McBride and Mr. Justice Harris concur.