City of Denver v. Lobenstein

Thatcher, C. J. This is a bill for an injunction to restrain the city of Denver from entering upon, taking possession, grading and converting into a public street in the city of Denver, lot number twelve, in the printing-house block, which said lot is alleged to be the property of the complainants in the c'ourt below, being defendants in error’ in this court. To this bill the defendants interposed a general demurrer, which was overruled, when, by leave Of court, they filed the plea of res judicata, upon which the complainants then joined issue. Upon the hearing the court rendered a decree in favor of the complainants, in accordance with the prayer of their bill. Under its plea, the city offered in evidence the record in a cause determined in the probate court of Arapahoe county, wherein the parties, complainants and defendant, were the same as in this suit, and wherein the complainants by their bill made substantially the same allegations, and prayed for the same relief, concerning the same premises. To the former bill, the city demurred generally and specially, and moved the court to dissolve the preliminary injunction that had issued in the cause. The demurrer was sustained and the motion to dissolve allowed. Therefore the court, on complainant’s motion, dismissed the bill at their costs. Uuder the state of the pleadings in this suit the question, whether the dismissal of a bill unqualified by such words as' “without prejudice” or the like, following upon the allowance of general and special demurrer, is. a bar to a [219] future action, cannot arise. The court is precluded, from this inquiry. The plea of res judicata was not set down for argument, for the purpose of determining its sufficiency. The complainants filed a replication to the plea, and thereby admitted its sufficiency if true. If the plaintiff reply to the plea, he thereby makes as full an admission of its validity as if it had been allowed upon argument; so that if the defendant, at the hearing, proves his plea to be true, the bill must be dismissed.” 1 Daniels’ Ch. Pl. and Pr. 695; Story’s Eq. Pl., § 697; Mitford & Taylor’s Pl. and Pr. in Eq. 390; Dows v. McMichael, 6 Paige, 139; Hughes v. Blake, 6 Wheat. 472. As the plea of res judicata goes to the whole bill, our inquiry necessarily is directed alone to the consideration of its verity. Was the subject-matter of this bill adjudicated in a former suit, by a court of competent jurisdiction, between the same parties or their privies % To this extent alone under the pleadings are we at liberty to inquire. The parties are identical. The jurisdiction of the probate court in the former bill is not drawn in question. In each bill the complainants assert the same title to the premises as to which injunctive relief is prayed. The acts which the complainants seek to restrain are the same in both suits. By the same right, to wit: certain proceedings of the city council held on the 10th day of May, A. D. 1875, anterior to the filing of the former bill, the city authorities claimed to act in converting the lot into a street, as appears from the complainants’ own evidence. But it is contended that after the dismissal of the former bill, new threats similar to those before were made by the city to do the very act which the probate court had refused to enjoin it from doing ; that these renewed threats constitute a different cause of action, and that therefore the doctrine of estoppel does not apply. In other words, the complainants assert in effect, that if A files a bill for an injunction against B to restrain him from cutting grass or committing any other trespass upon the prem [220] ises of A, and it is determined by such court at the hearing that A is not entitled to such relief, A is not estopped thereby from filing another bill at once for the same purpose, against the same party, if B still insists upon doing the act which the court refused tQ enjoin. If this doctrine be sound, the stability of all decrees granting or denying injunctive relief is practically at an end. Litigation upon adjudicated points in such cases, between the same parties, may never cease. The moment the right of a litigant to do, or not to do, a particular thing is judicially decided, he is at liberty to bring a new suit for the purpose of re-determining the same right between the same parties. The principle of the maxim upon which the doctrine, of estoppel by judgment or decree is founded, viz.: interest reipublicce ut sit finis litium is at variance with the theory of the complainants so ingeniously presented. The renewal of the threats to invade the same right of the complainants does not in any legal sense afford a distinct or different ground of action. It is held to be a “principle lying at the foundation of all well-conducted jurisprudence, that when a right or a fact has been judicially determined by a court of competent jurisdiction, the judgment thereon, so long as it remains unreversed, shall be conclusive upon the parties, and those in privity with them in law or estate.” Sawyer v. Woodbury, 7 Gray, 502. Both bills present the same issue involving the same inquiry, viz. : the right of the complainants to enjoin the city from occupying and using a certain lot for street purposes. The right or title of the complainants to the relief sought being the issue determined by the allowance of the demurrer to the former bill, cannot be re-litigated by bringing another bill. The decree must be reversed and bill dismissed. Reversed.