Pond v. Huling
125 Mo. App. 474
Mo. Ct. App.
1907
Check Treatment
BROADDÚS, P. J.

The plaintiff’s suit is to recover judgment on two special taxbills and to enforce a lien on certain real estate belonging to the defendant. The petition is in the usual form in such cаses. The plaintiff is the assignee of the Bandera Flag Stone Company, the party that did the work. The work consisted in constructing natural stone sidewalks on both sides of Seventeenth street from the curb line on the west side of Broadway to the curb line on the east side of Pennsylvania avenue. The defendant’s lots abutted on Seventeenth street.

The answer contains а general denial and certain specific defenses, viz.: First, that on the — day of November, 1897, the common council of Kansas City passed, and the mayor approved, a pretended ordinance, numbered 9002, under which plaintiff’s taxbills were issued. Section three of which provided that, “The width of the sidewalk shall not be less than six feet, so that the outer edge shall be dеtermined by the city engineer. The walk shall be laid -to the established grade of the street, and shall slope upward from the curb at the rate of one quarter of an inch to the foot.” The answer then proceeded to allege that by section two, article 9, of the city charter, under which the taxbills were issued, it is provided that the common council shall havе the power to improve the streets and sidewalks of the city . . . of such dimensions and with such materials, and in such manner and under such regulations as shall beprescribed *479by ordinance; that thе common council failed to provide. by ordinance for the construction of said sidewalks as the charter required, but on the contrary authorized the city engineer to prescribe the width of the stone to be laid as such sidewalk, as well as the distance of the same from the curb line; and that the said engineer did prescribe the width of the walk as well as its distanсe from the curb line. The second defense is, that the contract prohibited the contractor from requiring laborers employed in the work to labor more than eight hours a day аs provided by ordinance, Avhich 'defendant alleges was illegal.

The plaintiff replied to defendant’s answer denying its allegations “excepting only as may be expressly admitted herеinafter.” The reply among other matters sets up the plea of res ad judicata, viz.: That in October, 1898, the defendant instituted a suit in the circuit court of Jackson county for the purpose of obtaining a decree enjoining the collection of said taxbills, and to have them declared null and void, and cancelled, and the pretended cloud removed froto his property. That on a trial of the cause, ‍​‌​‌​‌​‌‌​‌‌‌​​​‌​​​‌​​‌‌‌​​‌‌​‌‌​‌‌​‌‌‌​​​‌​‌​​‍the finding and judgment were in favor of the said company, the then owners of the tax-bills, and plaintiff’s (defendant’s) bill dismissed; that defendant herein appealed from the judgment of the said court to the Kansas City Court of Appeals wherein upon hearing the said judgment was affirmed in all respects.

The defendant moved to strike out all that the spеcial matter set out in said reply, which was by the court overruled. ■ A trial was had, which resulted in a judgment for plaintiff, to reverse which defendant sued out his writ of error. The facts set up in the plea of res adjudicata are not denied, but the legal effect of the plea is the matter for determination. The contention of defendant at the very threshold of the case is, that the plea in bar was not sufficient as it does not state facts going *480to show that the matter in litigation is the same now in issue.

The plea of res adjudicaba is general in its terms and does not attempt to set out the facts in issue in the former suit. There is no disputing the rule, that such a plea should state the issues, so that the court may see whether or not the plea is available as a bar.

The allegation of the reрly, that in the former action, “the object, purpose and general nature of which was to obtain a decree enjoining the collection of said taxbills, and to have them declared null and void, and cancelled, and the pretended cloud thereof removed from the title to said property,” is indefinite. And we presume that a motion to compel plaintiff to amend his pleading in that particular would have been sustained. But he elected to move to strike it out, which was substantially a demurrer. As he took no exceptions to thе action of the court in overruling his ‍​‌​‌​‌​‌‌​‌‌‌​​​‌​​​‌​​‌‌‌​​‌‌​‌‌​‌‌​‌‌‌​​​‌​‌​​‍motion, he waived the defect. We do not think the reply was wholly bad, when we construe it with reference to the defendant’s answer. The defense sеts out a state of facts, which defendant insists made the taxbills void for want of compliance with the city charter. The plea of the reply is that the object of the former prоceedings was to have them declared null and void, and that the judgment of the court sustained their legality; the same object is sought to be established by the facts set up in the answer. The opinion in Huling v. Bandera Flag Stone Company, reported in 87 Mo. App. 349, shows that the matter set up in defendant’s answer, the ordinance 9002 and the contract made in accordance with it, was null and void as being repugnant to the city charter. The opinion of the court was adverse to defendant herein on that question.

The defense herein that the eight hour day labor ordinаnce governing laborers engaged by contractors in doing city work, was attempted to be set up as a cause for holding the taxbills void, but the opinion holds, that *481the matter was not suffiсiently pleaded and declined to pass upon it; therefore, it was not adjudicated. Under this condition of the record of the two cases, defendant insists that the plea of res adjudicada was not sustained under the law as held by the decisions of the courts of, the country, some of which it will be necessary to notice. In Russell v. Place, 94 U. S. 606, the court said: “To render the judgment conсlusive, it must appear by the record of the prior suit that the particular matter sought to be concluded was necessarily tried and determined — that is, that the verdict in the suit could not hаve been rendered without deciding that matter; it must be shown by extrinsic evidence, consistent with the record, that the verdict and judgment necessarily involved the consideration and ‍​‌​‌​‌​‌‌​‌‌‌​​​‌​​​‌​​‌‌‌​​‌‌​‌‌​‌‌​‌‌‌​​​‌​‌​​‍determination of the matter.” In Soderberg v. Armstrong, 116 Fed. Rep. 709, the court after referring to certain decisions said: “Under the principles announced in these decisions the judgment in the former suit in the stаte court is not conclusive as to matters which might have been decided, but is only conclusive as to such matters as were in fact decided.” And we find the law stated substantially the same in [Wеstern M. & M. Co. v. Coal Co., 10 West Va. 250; Railroad v. McCammon, 108 Mich. 368; Riley v. Lyons, 58 Tenn. 246; Jourolman v. Massengill, 86 Tenn. 81.]

On the other hand our attention has been called to other decisions, chiefly of this State. In Donnell v. Wright, 147 Mo. 639, in an opinion written by Judge Brace, it is said: “The law does not favor the splitting of one’s cause of action, so that, where one, as plaintiff in an equity suit to set aside a. tax deed, alleged six grounds of its invalidity in the petition, and only fivé were urged in the instructions and on aрpeal, all of which were overruled in a general decree in favor of the validity of the deed, he cannot, as defendant in a subsequent suit in ejectment founded on said tax dеed, urs^ *482as a defense the sixth ground abandoned by him on the former trial.” And further that, “All the issues, which might have been raised and litigated in any case, are as completely barred by the final deсree therein, as if they had been directly adjudicated and included in the verdict.” The ruling is similar in Hamilton v. McLean, 169 Mo. 51; State ex rel. v. St. Louis, 145 Mo. 551; Chouteau v. Gibson, 76 Mo. 38; Lyman v. Harvester Co., 68 Mo. App. 637.

We deem it unessential to discuss the effect of the decisions of some other jurisdictions, as the rule as stated has prevailed without exception in this State. We do not consider the case of Tootle v. Buckingham, 190 Mo. 183, as an exception to the rule when rightly understood, for the effect of the ‍​‌​‌​‌​‌‌​‌‌‌​​​‌​​​‌​​‌‌‌​​‌‌​‌‌​‌‌​‌‌‌​​​‌​‌​​‍decision is, that the causes of action in the two cases were different.

But it is contended that the plea is not available because it is not shown that there was a judgment on the merits. In Baldwin v. Davidson, 139 Mo. 118, it was held: “A voluntary dismissal of an appeal from the probate court by the heirs is no bar to a subsequent suit in equity by them to surcharge аnd falsify the accounts of the administrator and to set aside the judgment of the probate court. To be a bar to another action, there must be a judgment on the merits.” And so is the holding in Spradling v. Conway, 51 Mo. 51, and other Missouri cases. The plaintiff admits this to be the law, but contends that the judgment of the court dismissing the defendant’s bill was a judgment on the merits. In Coleman v. Dalton, 71 Mo. App. 14, in an opinion by Judge Gild, it wаs held: “Where the circuit court hears an application for a writ of prohibition to the probate court and renders a final judgment disallowing the relief sought, dismissing the petition and awarding the defendant costs, there is an end of the controversy and such-judgment is a bar to a similar proceeding in a court of appeals, though the judgment of the circuit court was *483rendered on demurrer.” And so it was held in ‍​‌​‌​‌​‌‌​‌‌‌​​​‌​​​‌​​‌‌‌​​‌‌​‌‌​‌‌​‌‌‌​​​‌​‌​​‍The Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. 262. And it is so held in other States: Lewis v. Lewis, 106 Mass. 309; Bledsoe v. Erwin, 33 La. Ann. 615; Adams v. Cameron, 40 Mich. 506; Pelton v. Mott, 11 Vermont 148. And also by the Supreme Court of the United States in Lyons v. Perin, 125 U. S. 698.

It follows from what has been said that the cause should be affirmed. Affirmed.

All concur.