Stearns v. Wiborg

Grant, J. {after stating the facts; dissenting). In my opinion, this case should be considered as one tried by the court, with a special finding of the jury upon the only disputed question of fact involved. Defendants’ counsel did not move to direct a verdict upon the ground that the Ohio judgment was a bar, but renewed-the motion that he had made before the proceedings in that suit had been introduced in evidence. Having failed to take any exceptions to the findings of fact or law, I do not think the defendants are in position to attack the judgment. My brethren, however, think otherwise, and it becomes necessary, therefore, to determine the question arising upon the Ohio judgment. That the judgments of the courts of one State upon the merits between the same parties and for the same cause of action are binding upon the courts of a sister State, where the former court had jurisdiction to render judgment, is unquestioned. Such judgments are res adjudicata, and bar the right of action in other States. It is unquestionable that there was no trial upon the merits in the common pleas court of Hamilton county. The most that defendants’ counsel urges is that there was a trial upon the merits in the justice’s court, and that under section 6589, 2 Rev. Stat. Ohio, the court was authorized to render judgment for the amount of the judgment in the justice’s court. . Were it not for the order of discontinuance, defendants’ contention might be sound. It is the general rule that a judgment by dismissal or nonsuit is no bar to another suit for the same cause of action. Was plaintiff entitled to his order of dismissal of June 11th? If he was, that deprived the court of any further jurisdiction in the matter. We are cited to no authority by the court of last resort in Ohio upon the question, and, after a careful search, I am unable to find any. Section 6587 requires the case to be conducted in the court of common pleas in the same manner as though it had been instituted in that court. It was decided in Wanzer v. Self, 30 Ohio St. 378, that an appeal from a county court vacated the judgment of the [589] court below. We are of tbe opinion that section 6589 provides for a judgment based upon the proceedings in the justice’s court only where the appellant remains idle, and takes no further steps to prosecute his appeal, and does not apply when the plaintiff has dismissed his suit under section 5314. We do not think this is in conflict with sections 5314 and 6587. Besides, section 6589 provides only for a judgment of nonsuit when plaintiff has failed to prosecute his appeal. A judgment of nonsuit is not, and cannot be, a judgment upon the merits. The statute of Missouri provides: “Upon the return of the justice being filed in the clerk’s office, the court shall be possessed of the cause, and shall proceed to hear, try, and determine the same anew, without regarding any error, defect,” etc. 2 Rev. Stat. Mo. § 6339. Under this statute it was held that a judgment of nonsuit, granted by the court on the request of the plaintiff, did not constitute a bar to another action. Lee v. Kaiser, 80 Mo. 431; 1 Van Fleet, Former Ad j. § 53; Hughes v. U. S., 4 Wall. 232. The same is held in Vermont. Small v. Haskins, 26 Vt. 209. Our own statute is not materially different from section 6587, 2 Rev. Stat. Ohio, and our courts have recognized the right of the plaintiff in such cases to submit to voluntary nonsuit. 1 Comp. Laws 1897, § 918; Franks v. Fecheimer, 44 Mich. 177 (6 N. W. 215). When the want of jurisdiction appears upon the face of the proceedings, the judgment is not binding upon other courts. The only restriction upon the right of the plaintiff to discontinue his suit is found in section 5315, 2 Bev. Stat. Ohio, where the defendant has pleaded a set-off or counterclaim. In such case the defendant is entitled to retain the case for the trial of his own claim, notwithstanding that plaintiff has dismissed his action or failed to appear. We are therefore of the opinion that the judgment of dismissal in the Ohio court was a matter of absolute right, and deprived the court of further jurisdiction. Exceptions were taken to the introduction of certain tes [590] timony. We find no error in the rulings of the court on these questions. It is not important to discuss them. Judgment should be affirmed. Long, J., concurred with Grant, J. Montgomery, C. J. The facts are fully stated in the opinion of Mr. Justice Grant. It is undoubted that the Ohio court of common pleas obtained jurisdiction of the parties and subject-matter. This being so, that court had the authority to determine the form of judgment to be entered. The parties appear to have so understood the law; had submitted to that court the question whether the order of dismissal of June 11th should stand, or whether a final judgment should be entered. The court ruled against the plaintiff, and entered a judgment for defendants. Whether right or wrong, this judgment is binding upon us. The decision of that court upon a question of law is just as conclusive as it is upon a question of fact. McNitt v. Turner, 16 Wall. 352. The judgment is reversed, and a new trial ordered. Hooker and Moore, JJ., concurred with Montgomery, C. J.