Harvie v. Turner

OureieR, Judge, delivered the opinion of the court. This is a proceeding under the statute in relation to forcible entries and detainers, and was commenced in July, 1867. The plaintiff alleges that he was in peaceable possession of the southeast quarter of section five, township fifty-four, range twenty, on the 20th day of December, 1866, and that the defendant on that day forcibly entered and took possession of the premises. At the trial, the plaintiff having given evidence tending to prove the existence of these facts, the defendant offered to read in evidence the record of the proceedings and judgment in a prior forcible entry and detainer suit, wherein he was plaintiff and one Howe was defendant, for the purpose of showing that the point in issue in the pending suit had been adjudicated. The record thus offered in evidence shows that the first suit was commenced in May, 1867, and that Turner (the present defendant) recovered final judgment therein for the possession of the premises suod for, to-wit: “A certain cabin situated, standing, and being upon the southwest quarter of section five, township fifty-four, range twenty;” being the same quarter-section described [447] in the present complaint. In connection with the record, and in explanation of it, the defendant offered further to show by oral proofs: 1. That Howe forcibly entered and took possession of the premises, and held them under Harvie’s (the present plaintiff’s) authority, and as his tenant. 2. That the action was for the same premises, and that the verdict and judgment therein were rendered upon the same facts and issues, which are involved in the present suit. S. That Harvie’s agent had knowledge of that suit; that he was present at the trial, and assisted actively in the preparation of the defense. On objection, the court excluded the record and the oral evidence in explanation of it. Whether this action of the court was warranted and correct, is the main matter for consideration. Its action in this behalf is sought to be defended upon the assumed ground that the subject-matter of the two actions and the parties were different. 1. As to the subject-matter. Possibly a rigidly strict construction of the complaint in the first suit might limit its subject to the cabin superstructure, apart from the land occupied by it. But that is evidently not the sense in which the term “ cabin” is there used. The action was founded upon an alleged forcible entry upon and detention of real estate. It was brought to recover possession of real property, and was not an action of replevin to recover possession of a personal chattel. Unless the ground covered and inclosed by the cabin was included, as well as the superstructure itself, the proceeding failed of its purpose, and was wholly nugatory. A fair construction of the record offered in evidence, however, discloses a recovery by Turner (the present defendant) of the locality inclosed by the cabin as well as the cabin building, the two together constituting the “premises ” sued for in that action; and to that extent the matters litigated between Turner and Howe in the first suit are res adju-dícala, as to them and their privies. The adjudication, however, in no way affected the title to the premises or the right to their possession. (Beeler v. Cardwell, 29 Mo. 72; Krevet v. Meyer, [448] 24 Mo. 107.) That suit determined that Turner, as a matter o£ fact, within the three years next prior to its institution, was in peaceable possession of the cabin inclosure, and that his possession was unlawfully invaded by Howe. 'These facts can not bo litigated over again in a subsequent forcible entry and detainer suit between the same parties, although the subsequent suit may embrace premises not included in the first. This second suit embraces all that was included in the first, and to that extent the identity between the two is perfect and indisputable. It would hardly bo claimed that Howe could escape the consequences of the first judgment by a mere enlargement of the claim, suing for all that -was embraced in the original litigation and something more. If that could be done, judgments could be rendered of no effect by mere artifice and subtlety. I am of the opinion that the exclusion of the defendant’s evidence was not warranted upon the ground of a difference in the subject-matter of the two suits. 2, As to the identity of the parties. By identity of parties, the law does not mean that the parties must be literally and nominally the same. If an agent or tenant were sued in the first action, and the principal or landlord had notice of the pendency of the suit, and an opportunity to come in and cross-examine the witnesses, and make defense to the action, the identity of the parties is sufficient, although the 'principal or landlord may be the actual party to the subsequent suit involving the same subject-matter. (1 Phil. Ev. 320, notes 111-12, 5th Am. ed., and the cases there cited.) Whether Ilarvie had notice of the first suit, whether his agent was present at the trial and participated in the defense, and whether Howe was Harvie’s tenant, were all matters to be inquired into ; but the court erroneously excluded the proffered proofs, and stopped the investigation. The judgment must therefore be reversed and the cause remanded. Whether the possession of the cabin inclosure determined the possession of the whole quarter-section, is a question requiring no attention at this time. As the case goes back for re-trial, it should be further observed that the plaintiff’s third instruction is subject to objection as being [449] abstract and misleading. It ought not to have been given in its present form. The defendant’s fifth instruction is objectionable and was properly refused. It comments on the evidence, and assumes to declare its degree of strength. That was for the jury. to determine. The other judges concur.