Phillpotts v. Blasdel, 10 Nev. 19

Phillpotts v. Blasdel

10 Nev. 19 | Nev. | 1874

By the Court,

Belknap, J.:

An action of ejectment for a mining claim between the parties to the present action was dismissed upon the written stipulation of their attorneys, conditioned that each party paid his own costs, and the plaintiff be released from liability on an undertaking given for a restraining order. Judgment was entered accordingly. Subsequently the present action of trespass for the mesne profits was commenced. In both cases the plaintiff relied upon the same title. The defendant pleaded the judgment in the ejectment *23suit, and offered it in evidence upon the theory that it was a bar to the plaintiff’s recovery. The refusal of the court to allow this evidence to go to the jury is assigned as error. The intention deduced front the agreement of the defendant to pay costs, for which he was not otherwise liable, and his release of the plaintiff from liability on the injunction-bond, is that the parties had adjusted their controversy; and this view is strengthened by the fact that the defendant in pursuance of the settlement quitclaimed the title in litigation to the plaintiff.

The judgment rendered is not embraced within the provisions enumerated in section 151 of the Practice Act for a judgment of dismissal or nonsuit, and is, therefore, by the terms of the statute, made a judgment upon the merits. For the reasons recited it is against the plaintiff. Its legal effect is to operate as a bar to any other suit between the same parties on the identical cause of action. (Bank of the Commonwealth v. Hopkins, 2 Dana, 395; Jarboe v. Smith, 10 B. Monroe, 257; Merritt v. Campbell, 47 Cal. 542.) It is contended, however, in behalf of plaintiff, that such judgment will not work an estoppel to the present action. The claim for mesne profits is founded upon the title and is inseparable from it. To recover, the plaintiff is necessarily required to put in issue and establish his right to the land. In such actions it is settled that a defendant is estopped to deny the record of a judgment in favor of a plaintiff in a prior action of ejectment founded upon the same title; and, as estoppels are .mutual, the converse is true, that a like judgment rendered against a plaintiff estops him from asserting his title. Therefore we think the defense was well pleaded.

Judgment reversed and cause remanded.

Hawley, J., having been of counsel for appellant in the ejectment suit, did not participate in the foregoing decision.