Neill v. Harris

Beck, J. (After stating the facts). Construing the allegations in the original petition together with those in the amendments, as set out in the statement of facts, it still appears that the plaintiffs in the present case had formerly brought suit against the defendant, W. H. Harris, “to recover their [plaintiffs’] interest in said propertji-, and that they have recovered judgment against the defendant, establishing their rights as they are in the petition above set out, to .wit, that each had title to a 6/35 interest in and to said property.” From the last amendment set forth in the statement of facts it appears that certain parts of the original petition were stricken, but this amendment does not strike out or qualify the original allegation that petitioners had been forced to bring suit against the defendant in this case to recover their interest in said property, and that they have recovered judgment against said W. H. Harris, establishing their rights etc. in the land. In fact the original declaration does not contain the exact allegation which this amendment purports to strike, nor does it appear from the other amendment that the allegations in the original petition are stricken, although it is alleged that the plaintiffs’ right to a present partition of the land “was the only feature of this case settled.” This results in some confusion .as to the exact meaning of paragraph seven of the petition, which contains the allegation as to the former suit to recover the land, and leaves us in some doubt as to the exact reading of that paragraph when effect is given to the amendments. But doubts as to the meaning of certain portions of [496] the pleading can not be resolved in favor of the pleader; and it seems to ns, as indicated above, that, construing the amendments and the original petition together, the meaning of the whole is, that a suit was brought for the recovery of the land (whether ejectment, or complaint for land in the statutory form, or an equitable petition for the recovery of the land, we can not tell); that upon the trial of that case, by consent of counsel, all issues were eliminated except the plaintiffs’ right to the land as alleged in their petition; that this right was established, and the right to have the same partitioned was also established; and that the question of mesne profits was by agreement eliminated. When the plaintiffs in a former suit brought for the recovery of the land took a judgment favorable to themselves, whether it was in terms that they should recover the land, or merely that they had a right to recover, and that the same be partitioned, they should in that suit also have had settled and adjudicated the question of mesne profits. They had the right to eliminate that question from that suit if they wished to; but when it was once eliminated, it ceased to exist as a basis of a claim on the part of these plaintiffs against the defendant, and it could not be -revived and insisted upon in a separate action. See Civil Code, §4998, and cases there cited. Judgment affirmed. All the Justices concur.