Watson v. Richardson
110 Iowa 698
Iowa
1899
Check Treatment
Ladd, • J.

1 2 The plea in bar was good.' The vital issue-in Watson v. Niles, supra, as in this suit, was whether the: plaintiff in this ease might inherit as the sole heir of Mott. Watson, deceased. That involved an interest in land;, this, the title to the personal property. The parties, in each action are identical. The same evidence-would be required. In Goodenow v. Litchfield, 59 Iowa, 228, it was said, quoting from 2 Smith, Lead. Cas. 789:: “An adjudication by a competent tribunal is conclusive, not: only in the proceeding in which it is announced, but in every other where the right or title is the same, although the cause of action may be different.” The very right to- recover is based on precisely the same ground in both actions. It is not essential that the causes of action be the same. The right or title on which they rest must be. Aurora City v. West, 7 Wall. 82; Whitaker v. Johnson Co., 12 Iowa, 596; Newby v. Caldwell, 54 Iowa., 102; State v. Waterman, 87 Iowa, 260. See Thomas v. McDaneld, 102 Iowa, 564, and authorities cited. True, that action had been appealed to this court. Our statute expressly provides that “no proceedings under a judgment or order, nor any part thereof, shall be stayed by an appeal,” unless a supersedeas bond is filed, and that “no appeal or stay shall vacate or affect such ■ judgment or order.” Code, section. 4128. The judgment remains in full force for all purposes,. - — subject only to determination on appeal, until which time-process thereon may be suspended. Lindsay v. Clayton Dist. Ct. 75 Iowa, 512; Cole v. Edwards, 104 Iowa, 373; Hackett v. Freeman, 103 Iowa, 296. Because of this statute we are precluded from adopting the rule which obtains in many *701states, holding that an appeal suspends the effect of a judgment, as an estoppel. See De Camp v. Miller, 44 N. J. Law, 617; Atkins v. Wyman, 45 Me. 399; Day v. De Jonge, 66 Mich. 550 (33 N. W. Rep. 527); Haynes v. Ordway, 52 N. H. 284; Small v. Haskins, 26 Vt. 209; Naftzgen v. Gregg, 99 Cal. 83 (33 Pac. Rep. 757, 37 Am. St. Rep. 23), and note; Byrne v. Prather, 14 La. Ann. 653. The very evident pur■pose of this statute is tor preserve to the prevailing litigant "the fruits of his judgment2 even though an appeal has been taken. Independent of statutory enactment, this rule obtains in England, and has the approval of courts of high .repute in this country. Creighton v. Keith, 50 Neb. 810 (70 N. W. Rep. 407); Nill v. Comparet, 16 Ind. 107 (79 Am. Dec. 412); Parkhurst v. Berdell, 110 N. Y. 386 (18 N. E. Rep. 123); Moore v. Williams, 132 Ill. 589 (24 N. E. Rep. 619, 22 Am. St. 563); Faber v. Hovey, 117 Mass. 108; Willard v. Ostrander, 51 Kan. 481 (37 Am. St. 294, 32 Pac. Rep. 1092). See Vinsant v. Vinsant, 49 Iowa, 641; Freeman Executions, .section 328. The word “judgment” is used in its generic sense in the chapter relating to procedure in the supreme court, and includes decrees in •equitable actions. Lindsay v. Clayton Dist. Ct., supra. It has sometimes been held that in such actions, because triable .■anew and subject to final disposition, the first decree should not be pleadable in bar. See Curtiss v. Beardsley, 15 Conn. 518; Cain v. Williams, 16 Nev. 426. But the distinction, 'if well founded, between judgments from which appeals are triable de novo, and on errors assigned, is not made by the ¡statute quoted. Besides, the right to render final judgment is not limited to equity causes. “The court may reverse, ■modify or affirm the judgment, decree or order appealed from, or render such as the inferior court should have done.” 'Code, section 4139. Section 4128 of the Code leaves no •option, save to hold that a judgment or decree is res adjudícala until set aside, modified,' or reversed. That this may Involve hardship occasionally must be conceded, but under *702a contrary holding the defeated' party might avoid the force of the decision for an indefinite period by merely taking an. appeal.

3 II. The fact that the action depends upon the same-right or title will not suffice to sustain a plea in abatement. It. must involve the same cause of action. Railroad Co. v. Heard, 44 Iowa, 358; Osborn v. Cloud, 23 Iowa, 108 Jones v. Brandt, 59 Iowa, 343; Aetna Iron Works v. Firmenich Mfg. Co., 90 Iowa, 390; Matthews v. Bank, 44 Minn. 442 (46 N. W. Rep. 913); 1 Am. & Eng. Enc. Law, 761, and cases collected; note to Smith v. Lathrop, 84 Am. Dec. 448. The cause of action in the suit for partition of the land was not the same as that demanding the-personal property. The latter could not have been joined, with the former (Code, section 4240), and was necessarily prosecuted in a separate suit.

III. The action for partition involved the very right to all the .property left by the deceased, and the situation of the parties was such as to warrant a continuance of other-suits involving the same right or title until that was determined. Implement Co. v. Stevens, 51 Kan. Sup. 530 (33 Pac. Rep. 367. In re Troxler, 46 La. 738 (15 South. Rep. 153). On both appeals, reversed.

Waterman J., takes no part.