128 P. 583 | Mont. | 1912
Lead Opinion
delivered the opinion of the court.
On February 25, 1910, one Nick Masich filed his complaint against the above-named relators in the district court of Lewis and Clark county, claiming damages for personal injuries. Issues were duly framed and the cause was tried, resulting in a judgment in favor of the plaintiff. On appeal to this court the judgment and an order denying a new trial were reversed and the cause was remanded with directions to dismiss the action. (Masich v. American Smelting & Refining Co. et al., 44 Mont. 36, 118 Pac. 764.) On remittitur filed in the district court the judgment was duly set aside and the action dismissed. No final judgment of dismissal was entered. Thereafter a new action between the same parties, on the same cause of action and for the same relief, was commenced by the plaintiff, in the same court. The defendants answered, and alleged, in addition to the facts heretofore stated, that the issues between the parties had been fully adjudicated by this court and that such adjudication constituted a bar to the second action. Plaintiff by reply admitted that all of the allegations of this special defense were true, save that there were other and additional facts set forth in the complaint in his second action; and he alleged that this court merely adjudged and determined that the complaint in the first action did not state facts sufficient to constitute a cause of action, and denied that the order of this court, and the dismissal of the first action,, constituted a bar to the second action. Relators thereupon moved the district court to dismiss the second action. The court denied the motion and at the same time struck from the answer those allegations with reference to an estoppel heretofore mentioned.
Relators have filed an affidavit setting forth the above facts and praying for a writ of mandate directing the district court to dismiss the action heretofore called the second action. Respondents have filed an answer to the affidavit, which, however,
In the case of State ex rel. La France Copper Co. v. District Court, 40 Mont. 206, 105 Pac. 721, this court laid down the rule that when a plaintiff has had one fair opportunity to make out his cause of action, and has failed, not on account of some technical omission or defect in the pleadings, but after a full' investigation of the issues as framed between the parties, this court will exercise its undoubted authority to order the cause dismissed, with a view to putting an end to the litigation. The case of Masich v. American Smelting & Refining Co. et al., supra, was ordered dismissed in accordance with this rule. We intended to finally dispose of the ease by the order then made, and it must have been apparent that such was the intention because the records of the court disclose the fact' that such an order has never been made, under like circumstances, save with that object in view. If we had intended that the plaintiff should be allowed to again try the same issues under a different state of the pleadings supplemented by other and additional evidence touching the same cause of action, the order would not have been made, since that might have been accomplished by remanding the cause for a new trial. If the contention of the respondents were correct, the result would be a practical nullification of the order of this court, and the court would be placed in a situation of refusing to enforce, or of modifying, its own order.
Neither is it necessary or seemly that the district court should be allowed to try the question of estoppel in the regular way. The, order made by this court was an extraordinary one, and it is for this court to interpret and enforce it, which it will do in the most summary way.
We think it altogether immaterial that no formal judgment has ever been entered in the so-called first action.
It is therefore ordered that a peremptory writ of mandate issue, requiring the district court of Lewis and Clark county to dismiss cause No. 7714, with costs to the defendants.
Dissenting Opinion
I dissent. Notwithstanding the disposition by this court, on the former appeal, of the case of Masich v. American Smelting & Refining Co., 44 Mont. 36, 118 Pac. 764, following the rule announced in the case of State ex rel. La France Copper Co. v. District Court, 40 Mont. 206, 105 Pac. 721, Masich had the right to commence a second action, if he chose to do so. (Rev. Codes, see. 6464.) When it was commenced it became the exclusive duty of the district court to determine in the first instance, in the ordinary way, whether the disposition made of the first action under the mandate of this court was á disposition of it upon the merits within the meaning of section 6717, Revised Codes, and, for this reason, may be made available as a bar to the second action, as res adjudicata. Its decision of this question, like any other ruling made in any other case upon the settlement of the issues, or upon a trial of them upon the merits, is subject to review by this court on appeal only, and cannot be controlled by mandamus or any other extraordinary writ.
Let it be conceded that in directing the dismissal of the former action, this court proceeded upon the theory that the plaintiff was not entitled to recover in any event. The order made by the district court in obedience to the mandate of this court should not be deemed of any greater efficacy as a final determination of the case than a final judgment, and should be availed of as a bar to the second action in the ordinary way by pleading it. Whether it concludes the plaintiff is a question for the district court in the first instance. The result of the majority opinion is that whenever in the course of proceeding in an action a trial court commits manifest error, this court will interfere with mandamus and set it right, thus substituting for its appellate jurisdiction its extraordinary jurisdiction under this writ.
