41 Ind. App. 466 | Ind. Ct. App. | 1908
Appellant by his complaint in two para-' graphs sought to recover from appellee rentals alleged to be due to him under the stipulations in a certain oil and gas lease.
This suit was commenced in the Wells Circuit Court on April 10,- 1899. The venue was <?hanged to the Jay Circuit Court, where appellant’s request “to submit said cause to a jury for trial” was overruled. The issues were submitted to the court, ánd at the request of the parties the court made special findings of fact and stated conclusions of law thereon. Judgment was rendered against appellant in accordance with the conclusions of law, and for a reversal of that judgment he appeals, and relies upon questions pre
The conclusions of law were that plaintiff take nothing by this suit, and that defendant have judgment for his costs.
Appellant has cited several cases- holding that a judgment on demurrer, where the court has jurisdiction of the parties and of the subject-matter of the action, is an adjudication of all matters confessed by the demurrer in .any subsequent litigation between the same parties, where the same question arises, except where the litigation is a direct proceeding to set aside such adjudication. The settled doctrine as announced by these cases is not applicable to the facts as found in the case at bar. For in this case the special findings show that no judgment was rendered on the ruling of. the court in sustaining the demurrer to the answer filed in the former suit. The only judgment in that action was upon the issue presented by the complaint and the general denial. While this suit is between the same parties, and based upon the same stipulation in the same contract as in the former action, yet under the issues in this case another demand is presented upon a different state of facts as the basis of an independent cause of action. With these facts appearing, and the absence of a finding showing that the defense here interposed could have been set up as a defense in the previous action, or that the matters in issue or points controverted and actually determined by -the first judgment
In Kilander v. Hoover (1887), 111 Ind. 10, it is said: “The judgment rendered in the first case is only conclusive as a plea, or as evidence, in a second or subsequent suit between the same parties, upon the same matter as was .directly in question and determined in that case.” Cleveland v. Creviston (1884), 93 Ind. 31, 47 Am. Rep. 367; Felton v. Smith (1882), 88 Ind. 149, 45 Am. Rep. 454.
In Kitts v. Willson (1894), 140 Ind. 604, 610, it is said: “But before the rule of former adjudication can be invoked it must appear that the thing demanded was the same; that the demand was founded upon the same cause of action; that it was between the same parties, and found for one of them against the other in the same quality. The party must not only be the same person, but he must also be suing in the same right. ’ ’ Citing authorities.
This court, in Beidenkoff v. Brazee (1902), 28 Ind. App. 646, 650, held that “it is only where the matter in issue has been either actually or presumptively determined that the judgment is a bar to another action.”
The court did not err in its conclusions of law.
Having disposed of all the questions argued by appellant, and finding no error, the judgment of the trial court is affirmed.