23 Kan. 143 | Kan. | 1879
The opinion of the court was delivered by
The question is, whether the former judgment recovered in the district court, at the October term, 1878, in the action of L. P. Rude v. the Bank, is a bar to the action commenced November 23d, 1878, by the same plaintiff against the same defendant. In the first action, Rude sued the bank for the wrongful conversion of the promissory note of $113.63, deposited with it by one Shamleffer for collection. The bank, in its answer, acknowledged receipt of the note for collection, and also admitted that it had sold .and disposed of it, but stated that it held its actual value, or proceeds of such sale, to apply to the satisfaction of certain debts due and payable by Shamleffer to the bank, which debts, it asserted, were in excess of the value or proceeds of the note. These debts were alleged to be due the bank at the time of the sale of the note, and before the assignment of the claim of Shamleffer to Rude. Under the pleadings, the sale and conversion of the note being admitted, one of the issues was, whether the proceeds of the note were properly retained by the bank. In brief, whether the account to the credit of Shamleffer in the bank at the time of the assignment to Rude, exceeded the amount of debts due and payable by him to the bank. The issues in the case turned largely upon the answer and reply. While the first action
If the bank had no valid set-off against Shamleffer, the judgment in the first action was erroneous. If it had a set-off' in excess of the proceeds of the note, the judgment was right. Whether right or wrong, it is in full force, unreversed, and concludes the rights of the parties in respect to all questions-involved in the pleadings on which it was rendered. As a judgment for the proceeds of the note might have been rendered by the court in the first .suit in favor of Rude, if the-bank had had no set-off equal to or in excess of said proceeds, the cause of action of the two suits was virtually the same.. When the merits in an action have been passed upon, or from the issues made by the pleadings might have been passed upon,, the judgment rendered in the case bars a subsequent suit for the same cause of action between the same parties. When the same cause of action has once been litigated and decided, that is an end of it, and the form of the action is immaterial. If the cause is the same, the judgment is conclusive. The second petition or bill of particulars contained averments of legal conclusions, rather than allegations of actual facts, but if the dry, naked, actual facts of the transactions of the bank concerning the note and its refusal to turn over the proceeds had been stated, as the code really demands in pleadings, the similarity of the causes of action would be more apparent.
• In our view, the former recovery as pleaded, is a complete-bar to the second action, and therefore the judgment of the district court will be reversed, and the case remanded with direction to that court to overrule the demurrer filed to the answer of the plaintiff in error.
