Gassert v. Black

De Witt, J. The only point of importance in the case is as follows: Without stating in detail the method by which the question was raised, it is sufficient to ' say that the defendants contended that the judgment in the former case was res adjudi-caba upon this trial, for the reason that the equitable defenses set up in this case were also pleaded in the former case, and that in the former case, the jury found the issues for the defendants, and, as the equitable issues were submitted to the jury, the judgment is res adjudicaba as to everything before the jury and the court at that time. In this contention the district court held against defendants. Hence their appeal. Appellants cite many cases, like Griffin v. Railroad Co., 102 N. Y. 449, 7 N. E. 735, wherein the opinion says: “The rule is well settled that a former judgment of a court of competent jurisdiction is final and conclusive between the parties, not only as to the matter actually determined, but as to every other matter which the parties might have litigated and have decided, as incident or essentially connected with the subject-matter of the litigation within the purview of the original action, either as matter of claim or of defense. (Pray v. Hegemam,, 98 N. Y. 351; Jordan v. Van Epps, 85 N. Y. 427, 436; Smith v. Smith, 79 N. Y. 634; Clemens v. Clemens, 37 N. Y. 59, 74.)” Also, an opinion of Chief Justice Shaw in Bigelow v. Winsor, 1 Gray, 299, in which the learned justice says: “It is no objection that the former suit embraced more subjects of controversy or more matter than the present. If the entire subject of the present controversy was embraced in it, it is sufficient. It is res judicata. ’ ’ Appellants also rely upon Vail v. Rinehart, 105 Ind. 6, 4 N. E. 218, in which the court says: “Under repeated decisions of this court, from its earliest organization down, the adjudication of the Dearborn circuit court against the appellee in such prior suit is a final determination against him, not only as to what was actually decided therein, but also as to every [41] other matter which the parties might have litigated in the case, and especially as to the alleged lien which the appellee asserts and seeks to enforce in the case at hand against the decedent’s land in Pulaski county. (Fischli v. Fischli, 1 Blackf. 360; Richardson v. Jones, 58 Ind. 240; Elwood v. Beymer, 100 Ind. 504.)” Such cases might be indefinitely multiplied.- as this principle will be found very frequently stated in the decisions. But these cases are wholly inapplicable to the facts of the former case of Gassert v. Black. Not only were the present equitable defenses not decided in the other case (11 Mont. 185) but the record of that trial shows, expressly and affirmatively, that they were not litigated. By the instructions of the court and the findings of the jury, the present equitable issues were never reached upon that trial. Instead of there being any presumption that they were passed upon by the jury, there is affirmative showing that they were not. That case was decided solely upon the ground that the action was prematurely brought,' and that plaintiff had no right to sue upon the note and foreclose the mortgage for the default in a year’s interest. It was decided upon the ground that the mortgage did not express the intention of the parties when it provided that the debt should be due if any year’s interest were in default. This proposition was expressly submitted to the jury when the court told the jury that, if they answered interrogatory No. 1 “No,” and interrogatories Nos. 2 and 3 “Yes,” they should go no further in the case. The jury did answer the interrogatories in just this way, and they went no further, and they made no findings upon the other equitable defenses submitted. It is true that they found a general verdict for defendants; but that was a matter of no consequence, as it was controlled by the special findings. Therefore, by the instructions of the court, the equitable issues in this case presented were wholly withdrawn from the jury in the other case, as being immaterial in the event that the jury decided the case upon the ground that the action was prematurely brought. They did decide it upon that ground, and that ground only. [42] The district court was therefore correct in its ruling that the former case was not res adjudicaba upon the equitable issues presented in this case. This view is fully sustained in Kleinschmidt v. Binzel, 14 Mont. 31, which decision goes much further than is necessary to hold in sustaining the ruling of the district court now before us. The question of res adjudicaba being out of the way, and the question of nonmaturity of the debt not being in issue in this case, the jury went on and made findings on all issues in favor of plaintiff, upon which findings the judgment for the debt and foreclosure of the mortgage was entered. Appellants also contend that, it having been determined in the former case that the mortgage did not express the intention of the parties, the present action should have been brought as upon a reformed mortgage. But the particular in which it was determined in the former case that the mortgage did not express the intention of the parties was simply that the intention was not that the whole debt should be due upon the default in a year’s interest. In the present action that question was out of the case. The whole time of the note had run, and the whole amount was due. There was no possible occasion to introduce into the case the question of reformation which was in issue in the other case. Appellants also assigned as error some rulings of the court in admitting and excluding testimony in reference to assays made of some ores, from the Black Warrior claim. The value of this ore was taken into consideration in the accounting between the parties in this case. We think that respondent answers appellants’ contention in this respect, in that he shows that the value of this ore was taken into consideration in the settlement between the parties. The jury found upon this matter, and that finding is not attacked, nor are we asked to set it aside. Therefore, if there were error in the omission or exclusion of the testimony as complained of, we are of opinion that it should not set aside the general result obtained in the case. (Merchants’ Nat. Bank v. Greenhood, 16 Mont. 395.) It is ordered that the judgment and the order denying a new trial be affirmed. [43] Since the. filing of this appeal the respondent, Harry Gas-sert, has died, and his administratrix, Sarah C. Gassert, has been substituted as the party respondent in this court. The remittitur will therefore issue in the name of Sarah C. Gas-sert, administratrix. Affirmed. Hunt, J., concurs.