Nystrom v. PennycookNystrom v. Pennycook
Defendants appeal from a mandatory injunctive order issued on motion after plaintiffs had secured judgment in an action for possession of land.
Testimony upon the estoppel was put in at the trial, but the court refused to submit the matter to the jury, holding in its charge that the circumstances adduced “do not spell estopрel.” To this ruling, defendants objected before the jury retired. The verdict was for the plaintiffs on the single question left tо the jury, namely, as to the right to possession. In the judgment entered thereon, nothing was said upon the matter of estоppel, nor upon the demand to have the wall removed, the latter matter not having been raised except in the complaint and pretrial order. No appeal was taken from the judgment.
Three months after judgment, plaintiffs secured a writ of possession, and a month later, on motion entitled in the action for possession, obtained the mandatory injunctive order, appealed from, by which defendants were required to remоve the wall. Hirschberg v. Flusser, 87 N.J. Eq. 588 (Ch. 1917).
Defendants urge that “an action for possession of land and an action for a mandatory injunction to restrain a continuing trespass are two distinct causes of action.” For this and other reasons, they say — and this is the matter we are to deal with principally here — the mandatory injunction may not issue on motion after judgment as though it were an incident thereof.
Defendants break up the circumstances here into two matters, first, their wrongful entry on the property, upon which is predicated the action for possession, and, second, their erection of the wall, upon which is predicated the claim to the mandatory injunction. We need not here
Our concern merely is whether thе mandatory injunction may issue on motion after the judgment for possession. The Superior Court has an ample authority, through the grant of auxiliary relief, to carry its judgments into full execution, even though like relief could be had in a separate action. By such means as these the law obviates the delays and expense of such an аction. Beatty v. De Forest, 27 N.J. Eq. 482 (E. & A. 1875). So, under the general powers of the former Court of Chancery and under
In the effectuation of these principles and with a view to the practicalities of the matter, the law in this State does not (as defendants argue) require the claim to auxiliary relief to have been disposed of at the trial or final hearing, even though this might have been done under the circumstances. But cf. Hahl v. Sugo, supra, as to the lаw of New York concerning a motion for such relief.
To be sure, as defendants say, a mandatory injunctive order does not issue as of course. However, the only question before us on the merits of the controversy is whether the very matter of estoppel that had been decided at the trial, сan be relitigated on the motion.
Defendants apparently are of the notion that this matter is not res judicata becаuse it is not mentioned in the judgment. But that is a misconception. On a defense of res judicata, the law commonly looks to the testimony or charge to ascertain what determinations underlie the judgment. Camden, Atlantic, etc., Co. v. Ventnor City, 106 N.J.L. 125 (E. & A. 1929); Locher v. Locher, 112 N.J. Eq. 25 (Ch. 1932); Clark Thread Co. v. William Clark Co., 55 N.J. Eq. 658, 663 (Ch. 1897), reversed, though apparently approved in this respect, 56 N.J. Eq. 789 (E. & A. 1898); cf. D.L. & W.R.R. Co. v. Breckenridge, 57 N.J. Eq. 154 (Ch. 1898), affirmed 58 N.J. Eq. 581 (E. & A. 1899). And this is so as to a judgment signed by a judge as well аs to one signed by a clerk.
The matter of estoppel raised here, may properly, under certain circumstances, be interposed, and in fact was interposed, as a defense to the claim for possession. Cf. Sumner v. Seaton, 47 N.J. Eq. 103 (Ch. 1890). That matter having been actually litigated and determined on its merits, the determination is conclusive, whether or not (this is the question above mooted) the claim for possession and that for a mandatory injunction to remоve the wall be deemed two causes of action. If they be two separable causes of actiоn, they both arose here out of the same subject
Affirmed.