| Ark. | Dec 5, 1896
(after stating- the facts.) The principal question in the case is one of pleading-, that is to say, whether or not appellee had a rig-ht to split up her claims for back rents, or for use and occupation, or for damag-es for the retention of the possession of her lands.
It is a well established rule of law that a single cause of action cannot be split, in order that separate suits may be brought for the various parts of what really constitutes but one demand. It is said by the court in Dutton v. Shaw, 35 Mich. 431" date_filed="1877-01-16" court="Mich." case_name="Dutton v. Shaw">35 Mich. 431, that “the principle which prevents the splitting up of causes of action and forbids double vexation for the same thing is a rule of justice, and not to be classed among technicalities.” In Damon v. Denny, 54 Conn. 253" date_filed="1886-07-20" court="Conn." case_name="Damon v. Denny">54 Conn. 253, the court said: “Where a pending suit is one in which it is legally possible for a judg-ment to be rendered upon a cause of action alleged in the second, and was brought for the purpose of obtaining such a judgment, the plaintiff is bound to exhaust the possibilities of that suit, before subjecting the defendant to the cost of a second suit.” See also Hitchin v. Campbell, 2 W. B1, 827; Martin v. Kennedy, 2 B. & P. 71; Seddon v. Tutop, 6 Term R. 607; Thorpe v. Cooper, 5 Bing. 116, 15 E. C. L. 387. The justice of the rule is however questioned by some courts and jurists, perhaps more, however, in its too extensive, application than on any account of any injustice in it when applied under proper restrictions. Thus Brett., J., in Brunsden v. Humphrey, 14 Q. B. Div. 145, said: “When that rule is applied to damages which are patent, it is a good rule; but where damages are afterwards - developed, it is not a rule to be commended. It is a rule which sometimes produces a harsh result, and if it were now for the first time put forward, I could not consent to its being pushed to the length to which it has been sometime carried.” In Stickel v. Steel, 41 Mich. 350" date_filed="1879-07-02" court="Mich." case_name="Stickel v. Steel">41 Mich. 350, the principle is advanced that claims originally one and indivisible may become single and separate, and in turn may again return to their indivisible estate. Cooley, J., uses this language: “In short, if the two bills constituted one demand in their origin, they must have become two for all legal purposes when the one fell due before the other; and if united again by the other falling due, they would be again separated when the remedy on one was barred, or whenever anything occurred which should render one the subject of a suit when the other was not.”
So much for the rule. It obtains in all the states of the Union and in England. The difficult thing is to apply the rule properly, that is, just what makes a single contract, giving only the one right of action, which cannot be split, is often a difficult question, and it is said that the cases are not altogether harmonious. “ The bare fact that the two causes of action spring out of the same contract does not Ipso facto render a judgment on one a bar to a suit on the other.” Perry v. Dickerson, 85 N.Y. 345" date_filed="1881-05-31" court="NY" case_name="Perry v. . Dickerson">85 N. Y. 345. “When several claims payable at different times arises out of the same contract or transaction, separate actions can be brought as each liability accrues.” Reformed Church v. Brown, 54 Barbour, 191; Sterner v. Gower, 3 W. &. S. (Penn.), 136; Union Ry. Co. v. Traube, 59 Mo. 355" date_filed="1875-03-15" court="Mo." case_name="Union Railroad & Transportation Co. v. Traube">59 Mo. 355; Ryall v. Prince, 82 Ala. 264" date_filed="1886-12-15" court="Ala." case_name="Ryall v. Prince">82 Ala. 264. “Yet if no action is brought until more than one is due, all that are due must be included in one action; and if an action is brought when more than one is due, a recovery in that suit will be an effectual bar. to a second action brought to recover the other claims that were due when the first was brought.” Reformed Church v. Brown, supra; Union Ry. Co. v. Traube, supra; Nickerson v. Rockwell, 90 Ill. 460" date_filed="1878-09-15" court="Ill." case_name="Nickerson v. Rockwell">90 Ill. 460. Instalments of rent are subject to the same rule as are other instalments of money due. An action may be brought as each instalment falls due, but all instalments due are but one cause of action. 1 Enc. PI. & Prac., p. 155, and the cases there cited. These authorities seem to settle the question. It seems to us that a suit for damages for wrongfully withholding or for use and occupation is even more a single cause of action, if anything; than a contract rental to be paid in instalments.
We are met at this stage of the discussion with the proposition that the doctrine of res judicata governs this case, rather than the rule of pleading which we have been discussing, and that the defendant guardian is, in effect, sued first in his individual capacity and then in this form of action as guardian, so that there are really two different defendants in the two actions. Having established this as a point of attack, it is next contended that the doctrine of res judicata does not apply, because the parties are not identical in the two suits. The authorities to which we have been referred to sustain this view are McBurnie v. Seaton, 111 Ind. 56" date_filed="1887-05-19" court="Ind." case_name="McBurnie v. Seaton">111 Ind. 56; 2 Black, Judgments, 536; Hall v. Richardson, 22 Hun, 444; Rathbone v. Hooney, 58 N.Y. 463" date_filed="1874-10-06" court="NY" case_name="Rathbone v. . Hooney">58 N. Y. 463.
It will be seen that in the case of McBurnie v. Seaton, McBurnie being dead, his wife, to whom had been allotted the notes and mortgages involved, instituted the second suit, and the other unsuccessful suit by McBurnie in his lifetime on . the same notes and mortgages as guardian was set up, and res judicata pleaded. The notes and mortgages were the property of McBur-nie individually, and not as guardian, and for this reason his suit as guardian failed, and as a matter of course his wife was not estopped to sue on the notes of which she was the legal owner. The statement in 2 Black on Judgments is based on this case of McBurnie v. Seaton.
In Hall v. Richardson, 22 Hun, 444, the first action had been brought against Richardson, as executor of Sutton Hall, deceased, and was unsuccessful, because he was not liable as such. The second action involving perhaps something of the same subject was brought against him individually. The second suit was not barred by the first. The case reported in 58 N. Y. 463 was determined on a similar state of facts.
It will readily be seen that, even if we were determining the case at bar on the principles governing the subject of res judicata, these cases are inapplicable. In the case at bar the appellant, if liable at all, was liable throughout individually in the ejectment suit. Were it possible in any case for an action to be maintained against one, either individually or in his fiduciary capacity, it is not certain that res judicata could not be well pleaded in the second suit.
The several items allowed by the court below or named in the commissioner’s report as credits to appellant, consisting of value of improvements, repairs and taxes paid, were involved in and settled by the ejectment suit; and the items of board, clothing, medicine, and tuition bills were evidently an afterthought, manifestly never intended to be made a matter of charge against the ward by the guardian, and therefore will be disallowed here.
This settles the controversy between counsel as to the real meaning of the compromise judgment in ejectment on principles of law, and we are relieved of the duty of attempting to do so on the facts of the controversy.
.Reversed and remanded, with directions to enter judgment according to this opinion; appellee paying the cost of this appeal.