87 P. 903 | Utah | 1906
after making the foregoing statement of the case', delivered the opinion of the court.
The complaint shows on its face that plaintiff acquired the title upon which he bases his right for recovery since the rendition of the judgment in the former suit, and which, defendant claims, is res adjudicata. According to the rule as laid down by the great weight of authority, the judgment in the former suit only determined the rights of the parties up to the time it was rendéred, and cannot prevent plaintiff from recovering on his subsequently acquired title. In Wells on Bes Adjudicata and Stare Decisis, section 332, the author tersely and, as we think, correctly states the rule as follows:
“When one fails to establish and afterwards acquires a new, or partially new, title, the former action does not debar him from seeking to recover on the subsequent acquirement. The former judgment merely settled the fact of title at the time it was rendered; but the second suit relies on a different title and so is in reality not on the same issue.”
The following authorities also declare the same doctrine: Perkins v. Parker, 10 Allen (Mass.) 22; McKissick v. McKissick, 6 Humph. (Tenn.) 75; Taylor v. McCrackin, 2 Blackf. (Ind.) 261; 24 A. & E. Ency. L. (2d Ed.), 777; 9 Ency. Pl. and Pr. 624. Applying the law of res adjudicata as announced by the foregoing authorities to the facts alleged in the complaint in this case, we are of the opinion, and so hold, that the demurrer is without merit and was properly overruled.
It seems that the trial court and the parties to the suit treated it as an action brought to modify a judgment, whereas it is essentially an original action to quiet title. We must look to the allegations of the complaint in determining the character of the action, and not to what attorneys may label
“On a final hearing the court may decree a perpetual injunction if it is necessary for the purpose of complete justice, although not prayed for in the bill.” (10 Ency. Pl. & Pr. 962, and eases cited; 2 Spelling, Extra Relief, 998; 2 High on Injunctions, 1573; Power v. Athens, 99 N. Y. 592, 2 N. E. 609; Webster v. Harris, 16 Ohio 490.)
The judgment is affirmed with costs.