141 N.W. 352 | N.D. | 1913
In the year 1906 the Golden Valley Land & Cattle Company were the owners of section 11, twp. 138, r. 105, and in that year entered into a contract to sell said land to the defendant Johnstone. This contract was soon mutually rescinded, but Johnstone thereafter decided to stand upon his contract, and took possession of the said-land. Thereafter and while he was in such possession, the Golden Valley Land & Cattle Company sold one quarter of said section to the plaintiff Randall, and another quarter section to a man named Christ. Christ and Randall brought separate actions against the defendant Johnstone to quiet title to the respective tracts purchased by them. Those complaints were first brought in the respective names of Christ and Randall, hut were afterwards amended in each instance to show that the Golden Valley Land & Cattle Company brought the action for the use of the said defendants. The case entitled the Golden Valley Land & Cattle Company for the use and benefit of A. T. Christ against John-stone was tried by the court without a jury, and at the conclusion of the testimony the court announced that he would hold in favor of the plaintiff. Before any formal order was entered to that effect the defendant in the other action moved the court to dismiss this action on the ground that the matter in controversy is the same as was set up in the Christ Case, which had just been tried by the court; that the matter in controversy was the validity of the same contract between the Golden Valley Land & Cattle Company and the defendant Johnstone, and that the Golden Valley Land & Cattle Company has elected to split, its case in regard to the contract for the sale of said land, and has elected to try the issues in regard to said contract in 'the first, or Christ Case, and is now barred from bringing this action or any other action in regard to any other portion of said section. This objection was overruled by the trial court, and is one of the principal errors relied upon by appellant.
(1) Appellant cites many cases holding that a plaintiff cannot split his cause of action and try it piecemeal. These cases are merely authorities upon the propositions of res judicata; the gist of these holdings being that, where the same parties have once litigated a question, it will be binding upon them thereafter. The appellants in the case at bar make the mistake of assuming that the case of Christ v. Johnstone and Randall v. Johnstone are between the same parties, because the
(2) After the above objection had been overruled by the trial court, the trial was had by the court upon the same evidence received in the case of Christ v. Johnstone, ante 6, 140 N. W. 678, just decided by this court, and judgment was entered in favor of the Golden Valley Land and Cattle Company for the use of the premises at the rate of $125 a year for five years. The evidence shows that the use plaintiff, Randall, did not purchase the premises until the year 1909, nor have an assignment of the claim for damages from the parties who owned the land prior to that time. Following the case of Christ v. Johnstone, supra, we hold that it was not proper for the trial court to grant any personal relief to the nominal plaintiffs in the action, nor was it proper to allow the use plaintiff, Randall, damages for the occupation of the land prior to the time he acquired the ownership thereof. It therefore follows that the judgment of the trial court should be modified and the sum of $625 damages he reduced to $250. Appellants will recover their costs on this appeal.
