Kain v. Garnaas

Bruce, J. (after stating the facts as above). The first assignment of error relates to the action of the court in allowing plaintiff to-prove the fact of the original action brought by L. B. Garnaas for the possession of the property, and that the same was decided against him on the ground that it was an illegal seizure. This evidence, it is claimed,, “put before the jury the fact that the defendant and appellant had suffered a defeat in the district court in an action between the same parties for the possession of this personal property, without the jury having before them the testimony in that action upon which the case was nonsuited, and carried to the jurors the impression that a jury in the former replevin action between these same parties had passed upon the merits of the case on trial adversely to the appellant.” In the same 'connection error is assigned on the action of the court in allowing the jurymen to take to their room as exhibits the verdict, order for judgment, judgment, and answer in said suit. It is claimed that the doctrine of res judicata only applies to a final judgment on the merits, and that the testimony and exhibits were therefore inadmissible. We do not, however, so hold. In the former suit the fact of ownership of the notes-was in issue. The same parties were the litigants, and therefore on [297] those questions the decision constituted a conclusive judgment upon the matter of ownership. There was no nonsuit taken, but a verdict was directed in 'favor of the plaintiffs and respondents herein. It is well established that a case decided on the merits on the questions submitted, or which ought to have been submitted under the trial and the issues, is adjudicated at the close of the trial, and that the fact can afterwards be pleaded by way of estoppel. See Eastman v. Cooper, 15 Pick. 276, 26 Am. Dec. 600; 23 Cyc. 1215. It is true that a judgment of voluntary nonsuit is no bar to a subsequent action upon the same claim or demand, nor is the dismissal of an action when brought about by the voluntary action of the party or ordered by the court on some preliminary or technical matter without a trial or hearing, except as to the particular ground on which the dismissal was ordered. “But a judgment dismissing a suit on the merits — that is, on a judicial consideration and determination of the ultimate facts in controversy, as distinguished from mere preliminary or technical issues — is conclusive to the same extent as if rendered on a verdict.” And much more must be a judgment which is based upon the verdict of a jury, even though the verdict be directed. 23 Cyc. 1231. The case of Reilly v. Perkins, 6 Ariz. 188, 56 Pac. 734, cited by counsel for appellant, is not in point. All that the court there held was that “an interlocutory order, overruling a general demurrer to a complaint, is not res judicata of its sufficiency to support a judgment for plaintiff, and hence is no bar to the subsequent vacation of such order at a subsequent term, and the entry of judgment on the pleadings in favor of defendant, since the doctrine of res judicata applies only to a final judgment on the merits.” In the prior case between the parties to this controversy the cause of action was once finally determined by the verdict of the jury, and the judgment of the court rendered thereon, and no appeal was prosecuted therefrom. The cases, therefore, are materially different. The next point raised is that the tender in this case was insufficient. It is claimed that the property was taken by appellant about October 1, 1908, and that at that time no tender was made. Not having been made, it is claimed that respondents’ sole remedy was redemption from sale. This contention can be and is met by the fact that the defendant and appellant, L. B. Garnaas, had at that time no interest or title in the notes and mortgaged property, and that therefore no tender to him [298] was necessary in any view of the case. We find no evidence that Garnaas Brothers have instituted any suit or that they are parties to this record. Appellant next complains that since the plaintiffs and respondents herein, and defendants in the former action instituted by L. B. Garnaas, failed to claim the property or value thereof in such action, they are estopped to recover the same here. There is no merit, however, in this contention. The right of respondents to recover was not litigated or tried upon its merits in the former action, nor was it necessary that it should be. All that was there tried was the fact of the ownership of the defendant and appellant, L. B. Garnaas, and it was not necessary for the defendants in such action to interpose any other issue, or to seek for a recovery therein. All that the answer asked for was a dismissal of the action, with costs. We see no merit in points two and five, to the effect that no tender or deposit is pleaded, nor is the validity of the chattel mortgages questioned, and that the ownership of the notes in issue was in L. B. Garnaas is not denied by the pleadings. We find, upon an examination of the answer, that although the answer denies that the notes were made and were the property of Garnaas Brothers, and not of the defendant, L. B. Garnaas, there is an allegation that the defendant is the owner and holder thereof, though nothing is said as to how or when he obtained the ownership and possession of the same. The action, however, is one of conversion, and for the wrongful conversion of the property on the 15th day of October, 1908, at which time it is conclusively shown by the prior judgment that the defendant, L. B. Garnaas, had no right, title, or interest, in the notes or mortgaged property whatever. We do not see that the fact that he is now the owner of the notes, if such be the fact, has anything to do with the case in so far as the original conversion was concerned. The next point made is that after the taking of the evidence, the motions, and the arguments to the jury, the court permitted plaintiff to file an amended and substitute complaint changing the character of plaintiffs from individuals to a copartnership. It is argued that the defendant may have had a counterclaim against the copartnership not available as a defense against the individuals, and for this reason the amendment was vital and prejudicial. It is claimed that defendants’ notes were not executed by the copartnership. We really do not see [299] what the notes had to do with the case. When the property was seized, the defendant did not own the notes, and it was immaterial who executed them. The members of the partnership and the original plaintiffs were the same persons. No written notice, it is true, was given to the defendant of the amendment, but we must assume that defendant or his counsel was in court and actually knew of the amendment, as the record shows that an exception to its allowance was taken by him. In spite of the provisions of §§ 6882 and 6883, Rev. Codes 1905, which allow the utmost latitude in regard to amendments, and in spite of the fact that a partnership is in no sense a legal entity but is made up and composed entirely of its members, we are asked to set aside this judgment because possibly the defendant may have had a counterclaim against the partnership. We do not find, however, that this suggestion was made in the trial court, or that even here the hypothesis is stated in the form of a fact. We think there is no ground for reversal on this score. Our conclusions upon the necessity of the tender disposes of the remaining assignments of error. The judgment of the District Court is affirmed. Burke, J., being disqualified, did not participate.