Geiser Manufacturing Co. v. Berry

Opinion of the court by Gillette, J.: As will be seen from the statement, the-question of the correctness of the conclusion reached in the-trial of this case turns upon the question as to whether or not the judgment of the probate court was res adjudicata in the matter of right of possession of the property involved. The [193] demurrer passed upon by the probate court presented two questions only: 1. As to whether or not the replevin petition stated facts sufficient to constitute a cause of action, and; 2. As to whether or not the probate court, under the allegations of the petition, had jurisdiction of the subject matter of the action. The demurrer was sustained, but the record does not show upon which of the grounds stated, or whether upon one or both of them, and in our judgment it is immaterial which, as such a conclusion might be reached without passing upon the question of the right of either party to the possession of the property involved; and. unless that question was passed upon it could not be said that the question of right of possession was at the trial res adjudicata. The probate court did not pass upon or decide the ques-i tion of right of possession of the property involved further than such a question may be deemed settled by a dismissal of the case for want of jurisdiction, or because of some defect in the replevin petition; and the question here squarely presented is whether or not such a determination has so concluded the rights of the parties to the possession of the property as that their day in court with reference thereto is lost. We think not. In replevin the right of possession of the property involved is not res adjudicata unless that question is tried and passed upon with such certainty as that the issue is removed from the domain of doubt and uncertainty and has become distinct and certain in its character. [194] This point was squarely passed upon by the supreme court of the United States in Hughes v. The United States, 4 Wallace, 232, in which the court says: “In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or privies, and the point in controversy must be the same in both cases, and must be determined on its merits. If the first suit was dismissed for defect of pleadings, or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.” In Little v. Bliss, 55 Kan. 94, a case identical with the case at bar, except that when the replevin action was called for trial the plaintiff in replevin made default for appearance and the cause was dismissed without a finding and judgment for the return of the property, the property was not returned, and action was brought to recover its value. The trial court submitted to the jury the question of the value of the property, minus the mortgage debt, and rendered judgment on the verdict for the value of the property less the mortgage indebtedness. The supreme court in an opinion by Chief Justice Horton, holds this to be erroneous, upon the ground that the right of possession had not been passed upon, although, under the Statute of that state, it might have been upon motion of the defendant after dismissal of the replevin action; and as the pleaded facts show the right of possession to be in the Mortgagee -when replevin action was commenced, the plaintiff could not recover more than nominal damages, and this [195] upon breach of the condition of the replevin bond, that plaintiff should duly prosecute the action. In this action it must be conceded, from the record, that the plaintiff in error had the right of possession under its mortgage at the bringing of the replevin suit, and the same right after such action was dismissed, unless proceedings were had under section 4062 of the statutes to determine the right of possession after demurrer sustained and dismissal of action, which section provides: “If the property has been delivered to the plaintiff and judgment rendered against him, on demurrer, or if he otherwise fail to prosecute his action to find judgment, the court shall, on application of the defendant or his attorneys, proceed to inquire into the' right of property, and right of possession of the defendant to the property taken.” This section of the statute provides a manner in which the right of possession of property taken in replevin, when the action is dismissed upon demurrer, may be determined, and when so determined nothing is left to conjecture. Until it is determined; the question of right of possession is not res adjudicata in actions of this kind. There are cases which when tried upon general demurreT are res adjudicata. These are cases in which the general issue is passed upon, as for instance, where a demurrer is overruled, .and no further proceeding is had or asked for by the party demurring; in such cases judgment may be entered for what is confessed by the demurrer, and in such a case the subject matter would be res adjudicata, but we are unable to find a case when, upon demurrer, a judgment of dismissal is entered [196] without finding upon the merits, the judgment of dismissal is held to be res adjudicaia as to the subject-matter. It follows that there was material error in the trial of this ease in the court below, in holding that the order of dismissal in the probate court was res adjudicaia as to the right of possession of the property involved, and in refusing to allow the plaintiff in. error to show in defense that it had, under its promissory notes due and mortgage to secure the same, the right of possession, for the purpose stated in said mortgage. For the same reason it was error to overrule motion for a new trial. The judgment of the trial court will be reversed, and .said cause remanded to the district court of Kay county for further proceedings in accordance with this opinion. Hainer, J., who presided in the court below not sitting; Beauchamp, J., absent; all the other Justices concurring.