52 Ind. App. 521 | Ind. Ct. App. | 1912
This was an action brought by the Caswell-Runyan Company against Lewis C. Mitten and his sureties upon a certain contractor’s bond, given for the construction of certain buildings. •
Appellants, other than Mitten, also made the same assignments of error, and each appellant separately excepted to each conclusion of law and separately assigned error thereon.
The complaint sought a recovery on a contractor’s bond, and alleged a breach thereof in suffering and permitting certain mechanics’ liens to be filed against the buildings erected for appellee by appellant Mitten. The complaint states a cause of action against all the appellants. To this complaint all the appellants answered by general denial. They also filed second and third paragraphs of answer as pleas of former adjudication. The second was a partial answer, in which the execution of the building contract and the bond sued on was admitted, but it was further averred, in substance, that on or about January 23, 1908, appellant Mitten sued appellee on said contract, and alleged full performance therof on his part and the furnishing to appellee of a large amount of extra labor and material not covered by the original contract; that in said action appellee filed an answer in seven paragraphs, the last of which was by way of counterclaim and set-off; that in said answer it made said contract and the bond here sued on exhibits, and alleged that said Mitten had violated said contract and bond in this, that he had failed to pay for the labor and material used in the construction'of the buildings covered by the contract; that he had not kept the same free from mechanics’ liens, but had suffered bills to be and remain unpaid, and liens therefor in the sum of $1,500 to be filed against said prop
The third paragraph of answer set up the plea of former adjudication in general terms, and averred the identity of the parties and the subject-matter of the two suits.
The sureties on said bond — appellants other than said Mitten — set up a special paragraph of answer, in which they admitted the execution of said bond to secure the performance of said builder’s contract by 'said Mitten, but alleged that thereafter and without their consent the buildings were materially changed by alterations and additions, and the cost thereof materially increased, so that the same were wholly different from the buildings for which* said contract was executed and for which they became bondsmen; that by reason thereof they are released from liability on said bond.
Appellee’s second paragraph of reply to the second and third paragraphs of answer admits that in the suit by said Mitten against appellee mentioned in said paragraphs of answer, it did file the answer as alleged, and that in said suit there was a finding and judgment for said Caswell-
A demurrer for want of sufficient facts was overruled to said paragraph of reply. The court heard evidence in support thereof and made a special finding of facts, in which it found the facts to be substantially as therein alleged. The finding states in detail facts showing a breach of the bond, failure to pay hills and certain mechanics’ liens on the buildings for which said contract was executed and said bond given; that liens for labor and material amounting to $1,579.89 have been foreclosed, and said Mitten has paid no part thereof; hut has himself filed a lien on said buildings for $3,200. The court also found that changes were made in said building, but were immaterial matters of detail; that in said former suit said Mitten sought to recover the con
The controlling question, raised in different ways by the several assignments of error, is that of former adjudication. Put in another form the question is, May a trial court, where matter is plainly in issue by unambiguous pleadings, make a general finding on all the issues, so far as shown by the record, and render judgment accordingly, and in a subsequent suit the same matter be put in issue by pleadings, and parol testimony be admitted to show that the matter though in issue in the first suit was not in fact adjudicated, and that the judgment so rendered was on other issues, and the matter so in issue was not in fact considered and adjudicated?
In Van Camp v. City of Huntington (1906), 39 Ind. App. 28, 37, 78 N. E. 1057, it is said: “To constitute a former adjudication, it is not necessary that the form, of action he the same in both cases. It is sufficient if the question in controversy has been once litigated between the same parties. Pittsburgh, etc., R. Co. v. Noftsger (1897), 21 Ind. App. 599 [46 N. E. 360], * * * In the suit for an injunction to restrain the appellant herein from interfering with the property of the city, the defendant therein pleaded the contract for the service which constituted the alleged interference. There was an answer in denial, and the execution of this contract was not effectually denied, and therefore, for the purposes of the cause, it was admitted. The judgment was on the merits and ivas a general judgment for the appellant herein. The execution of the contract was adjudicated in that suit, voluntarily prosecuted by the city to such result. Such matter could not properly be brought into controversy in the subsequent action on the contract.”
In Griffin v. Wallace (1879), 66 Ind. 410, 416, it is said: “But, in any given case; where the plaintiff has sued in assumpsit, or in any action, for a number of separate causes of action which might be joined, making the aggregate of such causes the amount for which he demands judgment, if neglecting to withdraw any of those causes from the jury or court on the trial, he fails to establish any of them by proof, he cannot afterward bring another suit for those items. ’ ’ In the same ease on page 419, it was also said that if a party “fail in the proof of all that is within the issues in the cause, but such failure is not shown by the record,” the rule of former adjudication is applicable.
The general rule is that what was in fact in issue in the former action is to be determined from the pleading. Howe v. Lewis, supra, 114; Goble v. Dillon, supra; People’s Sav., etc., Assn. v. Spears (1888), 115 Ind. 297, 300, 17 N. E. 570,
The case most confidently relied- on by appellee company is Bottorff v. Wise, supra. The court in that ease passed on the sufficiency of a reply of former adjudication and held it good, and stated that a possessory action to recover lands and mesne profits, followed by a judgment thereon, was not a bar to an action for waste and injury to land. This was all that the case actually decided, but the rule is broadly stated that the presumption that all matters within the issues were determined is not conclusive. This language as applied to the facts of that case may have been correct, and under the well-recognized rule we are not warranted in making a broader application of the rule than the facts of that case warrant. The ease is cited in Goble v. Dillon, supra, where the rule is more fully and accurately stated on page 332. Appellee company also relies on the ease of Russell v. Place (1876), 94 U. S. 606, 24 L. Ed. 214, and it may be admitted that its contention is, to some extent, sustained by some of the language there employed. But the rule as generally declared in this State and other states is recognized, and on page 608 it is said: “To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible. * * * The record wants, therefore, that certainty which is essential to its operation as an estoppel, and does not conclude the defendants from contesting the infringement or the validity of the patent in this suit.”
_ In 2 Van Fleet, Former Adjud. §422, it is stated that there is some confusion in the decisions over the question of admissibility in evidence of the secret deliberations of the judge or jury to determine that an issue was or was not decided, but the eases cited by the author show the weight of authority to be against their admissibility except in unusual cases unlike the one at bar. In 2 Van Fleet, Former Adjud.
The answer of former adjudication was partial, and covered all amounts in excess of the former judgment. 2 Van Fleet, Former Adjud. §572 et seq.; City of Anderson v. Fleming (1903), 160 Ind. 597, 603, 67 N. E. 443, 66 L. R. A. 119.
Judgment reversed, with instructions to the lower court to sustain the motion for a new trial, to sustain the demurrer to the second paragraph of the reply to the second and third
Note.—Reported in 99 N. E. 47. See, also, under (2) 23 Cyc. 1221; (3) 23 Cyc. 1295; (4) 23 Cyc. 1538, As to the conelusiveness of a Judgment, see 15 Am. St. 142. As to Judgment as subject of counterclaim, see 47 Am. St. 591. For a discussion of the application of the doctrine of res judicata to issues in an action as to which the Judgment is silent, see 6 Ann. Cas. 104.