Nixon v. Johnson

The opinion of the court was delivered by Wells, J. : The only question before us in this case is, Can a justice of the peace before whom an action of attachment is pending by change of venue inquire into the correctness and overrule the action of the justice before whom the cause was originally brought in sustaining the attachment therein made as against a motion to discharge it ? The plaintiff in error refers to section 77, justices’ code; Black on Judgments, vol. I, § 308; Butcher v. [241] Taylor, 18 Kan. 558; Sullivan v. Brown, 47 id. 708, and Carlyle v. Smith, 36 id. 614, as tending to support his contention that the last justice had authority to rehear such a motion and sustain the same, although the former justice had overruled it upon its merits, but an examination of the authorities fails to satisfy us that such contention is correct. In Comm’rs of Wilson Co. v. McIntosh, 30 Kan. 234, the supreme court says : “The old rule that the decision made upon a motion is not res adjudicata, and does not prevent a reexamination of the question decided in the more regular form of a suit either in law or in equity, no longer obtains in its former strictness. Regard is now had léss to the form of the proceeding and more to the substance and conditions of the decision. ‘ ‘ The interests of the individual as well as of the community demand that there should be a definitive end of every litigation, and nothing could be more impolitic than to leave it in the discretion of every court to revise and review and reconsider its judgments without limit.” 1 Black, Judgm., § 306. “ Where a motion is duly made to dissolve an attachment on the two grounds alone, that the allegations in the affidavits therefor are false, and that the case is not one in which an attachment may issue, and upon a hearing the attachment is dissolved, it is res adjudicaba.” (Hoge v. Norton, 22 Kan. 374.) The doctrine of res adju,dicata is not applicable to motions, except as to other applications on same facts for similar orders. (Benz v. Hines and Tarr, 3 Kan. 390.) The judgment of the court below was correct and is affirmed.