7 Kan. App. 717 | Kan. Ct. App. | 1898
The opinion of the court was delivered by
I. The penalty portion of the judgment was erroneous. More than a year had elapsed after the payment of the warrant in question, and after demand for its repayment, prior to the commencement of this action. Recovery of the penalty was barred by subdivision 4 of section 18 of the civil code.
In Griffin v. Seymour, 15 Iowa, 30, it was held that where one of the grounds of the demurrer was a misjoinder of parties, and the other involved the merits or the right of the plaintiff to recover-on his cause of action, it would be presumed that the court sustained it upon the former ground alone, where the record did not state the ground of the ruling. It should be observed, however, that upon an appeal from that ruling the supreme court had held there was a misjoinder of parties in the original action. (Griffin v. The County of Grundy et al., 10 Iowa, 226.)
The supreme court of New York, in People v. Stephens, 51 How. Prac. Rep. 235, gave' the question now before us very careful consideration. The grounds of the demurrer in the case already adjudicated had been the same as in this case, and the court had given “judgment for the defendant upon said demurrer,”, with leave to the plaintiffs to amend. After a long delay an appeal was taken. The supreme court held that the judgment upon the demurrer was
Our supreme court, in the case of Smith v. Auld, 31 Kan. 262, considered questions quite similar to the one here presented. From a review of several authorities, the court concluded that the mere fact that a dismissal is not expressed to be without prejudice does not necessarily establish that it was a decision on the merits and a bar to a subsequent action ; that where a former adjudication is pleaded in bar the whole record of the prior action is to be searched in order to' determine what was in fact adjudicated. The court announced the following doctrine :
“In conclusion, it maybe laid down as a general proposition, that wherever from the face of the record it affirmatively appears that an order of dismissal was based on matters other than the merits, such order of "dismissal will not be a bar to a future action.”
It has been quite uniformly held that, while evidence may be introduced for the purpose of sustaining or overthrowing the plea, of res adjudicata, it is not ad- ■ missible to contradict the record. Excepting the Iowa case, in which the ground of the demurrer upon
The judgment of the district court is reversed, and the case remanded, with instructions to enter judgment in favor of the plaintiff in error for costs.