Stewart v. Village of Ashtabula

TAFT, Circuit Judge (after stating the facts). The main question in this case is whether the decree dismissing the bill in the state court, set up in the fourth defense of the answer, conclusively estops the plaintiff on the issue whether he complied with the conditions of the granting ordinance. I have no doubt that it does so estop him, and that as between him and the village, in any subsequent litigation, the fact that he failed to comply with the conditions ,of this ordinance must be taken as conclusively established. The answer shows that, in the case in the state court, Stewart affirmed that he had complied with the conditions of this ordinance, and the village denied that he had so complied, and averred the particulars in which he had failed to comply with the conditions; that a trial was had upon this issue; and that the common pleas court dismissed his petition for an injunction. It further appears that the circuit court passed upon the same issues, and in terms found that the conditions had not been complied with, and for that reason affirmed the -decree of the common pleas court dismissing the petition, and that the supreme court affirmed the action of the circuit court. It thus affirmatively appears from the records of the court that the issue was made as to the compliance with the conditions, and that because of a failure to comply with the conditions the decree dismissed the bill. Now, it might very well be that if the record did not show what the reason of the court was for dismissing the bill, and what the court actually decided in dismissing the bill, it must be inferred that the court merely exercised the legal discretion which is vested in a court of equity in giving or withholding injunctive relief. In a case where it is not made to appear what was actually decided in rendering the decree, the decree is conclusive only upon that point without which the case could not have been decided as it was. But if an issue upon a particular fact is made, upon which the decree might turn, and it affirmatively appears, either from the record or by oral evidence, that it in fact did turn upon this issue, then the decree is conclusive upon the parties in respect of such issue. Decrees in equity, whether they dismiss the bill or grant the relief prayed for, are as binding, by way of the thing adjudged between the parties, as judgments at law. The. necessary difference between the effect of a decree of dismissal 519 in equity and a judgment for the defendant at law arises from the varying grounds upon which a decree for dismissal may be based, while the 'judgment for the defendant at law must always rest upon the failure of the plaintiff to sustain the averments of his petition. A decree for dismissal in equity may be based on the ground that the plaintiff has an adequate remedy at law. In such a case the decree, of course, cannot be used to estop the plaintiff from affirming the truth of the averments of his bill in an action at law, for the very ground for the dismissal was that this suit was what he should have brought in (he first place. Again, in cases of specific performance and in eases where the extraordinary remedy of injunction is prayed, the court may deny the relief in its legal discretion, which the court may exercise in granting or withholding such relief on equitable principles which have no application in a court of law where the same cause of action or the same defense is mooted. It is this difference between a decree of dismissal in equity and a judgment for the defendant at law on which the decisions relied upon by the plaintiff’s counsel in this case, from the supreme court of Ohio, must rest. In Cramer v. Moore, 36 Ohio St. 347, in a suit at law on a promissory note, the maker, was held not estopped from setting up want of consideration or fraud by a decree dismissing his petition in an action brought to enjoin the negotiation of the note and to obtain its surrender and cancellation, although the matter set up as a defense was relied on as the ground of relief in the first petition in equity. There was nothing to show in the case what the court actually decided, except the decree dismissing the petition in equity. As that decree might have been based on the ground that the opportunity to make a defense gave him a sufficient relief at law, the decree in equity could, of course, not estop the plaintiff in the suit at law from pleading the defense, the opportunity to plead which in a suit at law might have been made the basis for the action of the court of equity. So, in the case of Porter v. Wagner, 36 Ohio St. 471, it wa,s held that the judgment of dismissal of a petition for the specific performance of an agreement, and of a counterclaim ‘based upon an alleged subsequent agreement to rescind the former agreement and repay the money paid ihereon, was no bar to an action for the recovery of the money paid on the first agreement in accordance wdth the second agreement And this was put on the ground that the refusal of the court to rescind the contract as prayed in the equitable counterclaim was not inconsistent with (he alleged promise of the vendor to refund th(; money paid in consideration of his release from the contract; that it might have been based on the ground that the remedy at law was ample, and, as it did not conclusively appear that the failure to prove a contract of rescission was the basis of the decree, it could not be inferred. If, however, the evidence show's exactly what the ground was upon which the decree was based, then the conclusiveness of a dismissal in equity upon that ground is clear. This is clearly shown by the case of Blackinton v. Blackinton, 113 Mass. 231, in wdiich the issues out of chancery were submitted to a jury, and upon those issues a 520 decree dismissing tbe bill was entered. It was held that the. decree of dismissal was conclusive upon the issues found by the jury in a subsequent action at law. See, also, Herm. Estop. § 403. It is true that the findings of fact and conclusions of law of the court, made for the purpose of an appeal under the statute of Ohio, do not bind the parties as to every fact found or conclusion of law stated; but that they may be used as evidence to enable the court to determine the exact issue which was decided, and upon which the decree of the court necessarily depended, is shown in the case of Kashman v. Parsons, 70 Conn. 295, 39 Atl. 179, upon which the plaintiff most relies. It being conclusively established by the decree pleaded that the plaintiff did not comply with the conditions of his grant, the question arises, what damages is he entitled to when the village for that reason removes his track from the streets, carefully, so as to damage him as little as possible? The ordinance would seem to vest in the village the power to act, and remove the tracks from the streets, if the council concluded that the conditions had not been complied with. It may be (I do not find it necessary to decide) that, even in the face of these strong provisions of the ordinance for the benefit of the village, the defendant should have applied to a court to adjudge the existence of a ground of forfeiture. Since the act of the village, however, the ground of forfeiture has been conclusively adjudged to exist. It must be assumed that it would have been so found, had the village resorted to judicial proceedings in the first instance. I can see, therefore, no ground for holding that the plaintiff is entitled to a recovery of any damages, because his condition, with the forfeiture adjudged against him subsequent to the act, is not different from what it would have been had it been adjudged against him prior to the act complained of. The former action of the court in overruling the demurrer must be confirmed, and the motion for a rehearing is denied.