# Haney v. Neace-Stark Co.

> Oregon Supreme Court · July 17, 1923 · 109 Or. 93

URL: https://www.frixlaw.com/law-library/cases/6907997

## Case

- **Full name:** HANEY v. NEACE-STARK CO.
- **Court:** Oregon Supreme Court
- **Decided:** July 17, 1923
- **Citations:** 109 Or. 93; 216 P. 757; 1923 Ore. LEXIS 92
- **Precedential status:** Published
- **Opinion:** On rehearing by Brown
- **Judges:** Bbown, Brown
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6907997

## Opinion text

Rehearing denied October 23, 1923.
On Petition for Rehearing.
( 219 Pac. 190 .)
Mr. J. J. Heilner and Messrs. Clifford & Correll, for the petition.
Messrs. McColloch & McCollooh, contra.
BROWN, J.
The Neace-Stark Company, through its attorneys, has filed a petition for a rehearing. *120 For a full statement of the facts and issues involved herein, see Haney v. Neace-Stark Co., supra, 94 ( 216 Pac. 757 ).
The court expressly set forth in finding of fact No. 18—
“That the extent of appropriations and application and use of water * * cannot be determined in this proceeding from the pleadings and evidence submitted,” and that, “for like reasons the respective rights and priorities * * cannot be determined or governed by any decree in this proceeding.”
In its conclusions of law, paragraph 1, the court found that—
“The relative rights (to the waters) and extent thereof as between said parties” were not “determined and not subject to determination from the pleadings and evidence in this proceeding.”
The decree reads:
“And the court having made and filed its findings of fact and conclusions of law, it is now, by virtue of the law and the findings aforesaid, considered, ordered and decreed that this suit be, and the same hereby is, dismissed and that neither party recovers costs or disbursements of the other.”
The petition presents the question of res adjudicata.
“Former adjudication is, when pleaded, a plea in bar of the further prosecution of a suit, on the ground that the same subject matter has been already litigated between the same parties, or their privies, and a judgment rendered on the merits of the case.” 9 Ency. Plead. & Prac., pp. 611, 612.
To be effectual as a bar to further litigation, the judgment or decree, within the provisions of Sections 411 and 756, Or. L., must have been rendered on the merits of the cause: Toy v. Gong, 87 Or. 454 *121 ( 170 Pac. 936 ); Hoover v. King, 43 Or. 281 ( 72 Pac. 880 , 98 Am. St. Rep. 754 , 65 L. R. A. 790).
“A decree is the judgment or sentence of a court of equity. It is pronounced on the hearing of issues and determines the rights of the parties to the suit.” 16 Cyc. 471.
In order to state a good cause of defense, the defendant averred that in the former suit the decree was rendered upon the merits of the case, and, in order to sustain its plea of former adjudication, made the following offer of evidence:
“Judge Clifford: Now, * * in support of our plea of former adjudication, I desire at this time to offer in evidence the judgment-roll of the court in the case of Herman C. Haney * * v. Neace-Starlc Company * * , and particularly the complaint in the case, the answer * * , also the findings of fact and conclusions of law found by this court, the decree of this court, and also the opinion of this court.”
The offer was received. But the record discloses the fact that the former case was not decided upon its merits.
When is a case decided upon its merits? A common definition of “merits” is:
“Matter of substance, in law, as distinguished from matter of form or technicality.” Balm, Admr., v. Gunnison, 12 Wis. 588 ; cited in Black’s Law Dictionary, 2 Pope Legal Definitions, Cyc. Law Dictionary, Adjudicated Words & Phrases, Winfield, 5 Words & Phrases, First Series, 4493.
“A ‘defense upon the merits’ is one which depends upon the inherent justice of the defendant’s contention, as shown by the substantial facts of the case, as distinguished from one which rests upon technical objections or some collateral matter. Thus, there may be a good defense growing out of an error in the plaintiff’s pleadings, but there is not a defense *122 upon the merits unless the real nature of the transaction in controversy shows the defendant to be in the right.” Black’s Law Dictionary.
“As a technical legal term, ‘merits’ has been defined as matter of substance, in law, as distinguished from matters of form, and as the real or substantial grounds of action or defense, in contradistinction to some technical or collateral matter raised in the course of the suit. The judgment is upon the merits when it amounts to a declaration of the law as to the respective rights and duties of the parties, based on the ultimate facts or state of facts disclosed by the pleadings, and evidence upon which the right of recovery depends, irrespective of formal, technical, or dilatory objections or contentions.” 5 Words & Phrases, First Series, 4494.
“ ‘Merit’: The intrinsic rights and wrongs of a case as determined by matters of substance, in distinction from matters of form; the strict legal rights of the parties, as distinguished from those depending upon questions of practice, jurisdiction, competence, discretion, favor, or the like.” Webster’s New International Dictionary.
The defendant Neace-Stark Company takes exception to the following excerpt from the former opinion, reading:
“But, regardless of the deficiency in the pleading, the pertinent fact is that the court refused to decide a specific issue upon its merits; and, hence, there being no decision, there was no adjudication as to that issue. * * In the former suit the court did not settle, in the exercise of its judicial authority, the relative rights of Herman C. Haney and John E. Astner and the Neace-Stark Company, to divert and use, during the irrigation seasons, the quantities of water required from the natural flow of Powder River and its tributaries, with a priority of 1910. The court having failed to adjudge the issue, it follows that there can be no successful defense of former adjudication.”
*123 The petitioners assert that to allow the,opinion of the court to stand will result in a “complete nullification of Section 411, Or. L., and a direct reversal of several opinions of this court heretofore rendered, construing that section of our Code. ’ ’ In other words, the contention of petitioners is, in effect, that whenever a trial court shall enter a decree dismissing a suit, unless such decree expressly provides that it is without prejudice to another suit by the plaintiff for the same cause, it shall constitute a bar to the second suit, although the issues are undetermined in the prior suit. Such is not the law, and neither the section of the Code referred to nor the decisions of this court sustain the defendants’ contention. That section of the Code provides, among other things:
“Whenever, upon the trial, it is determined that the plaintiff is not entitled to the relief claimed, or any part thereof, a decree shall be given dismissing the suit, and such decree shall have the effect to bar another suit for the same cause, or any part thereof
Mark the language: “Whenever * * it is determined that the plaintiff is not entitled to the relief claimed,” etc. By the language of this section, before there is a decree of dismissal that constitutes a bar, there shall be a determination by the court. A determination of what? The material issues, as made by the pleadings, of course.
In the instant case, the court made no determination of the issue in question. The court expressly said so, and its declaration- is of record and has been received in evidence by the offer of the defendant, for the purpose of proving its plea of former adjudication. The defendant made the record. It is in *124 cumbent upon him who would avail himself of the defense of former adjudication to establish it. The evidence that has been offered and received into the record not only fails to prove that the matter at issue was adjudicated in the former hearing, but conclusively establishes that the court made no determination of the vital issues above noted.
The Oregon authorities cited are in harmony with our holding in the principal opinion. Those cases were decided upon the merits, while the decree pleaded as a bar in this cause was not given upon the merits. The petitioner quotes language used by Mr. Justice Harris in Ton Toy v. Gong, 87 Or. 454 ( 170 Pac. 936 ). That case not only fails to support the contention of petitioner, but is authority for our holding in the former case. Quoting from the body of the opinion, we have:
“The pleadings, findings of fact and conclusions of law filed in the suit in equity were competent for the purpose of showing that the question of partnership was actually involved in the decree and actually and necessarily decided: Gentry v. Pacific Live Stock Co., 45 Or. 233, 238 ( 77 Pac. 115 ); Astoria v. Astoria & Col. Riv. R. Co., 67 Or. 538, 549 ( 136 Pac. 645 , 49 L. R. A. (N. S.) 404); 23 Cyc. 1292; 15 R. C. L. 979, 980, 1048, 1049.
“The record discloses that the question of the existence of the partnership was actually decided and necessarily included in the decree, and the decision of that question was necessary to the decree; * * the decree of dismissal was not made ‘without prejudice to another suit by the plaintiff for the same cause, or any part thereof,’ but it was an unqualified decree of dismissal on the merits, and is therefore res adjudicata.”
You will note that the Justice is careful to say that — ■
*125 “The question * * was actually decided and * * that * * it was an unqualified decree of dismissal on the merits”;
and, “the pleadings, findings of fact and conclusions of law filed in the suit * * were competent” evidence of the court’s determination.
The opinion in Swift v. McPherson, 232 U. S. 51 ( 58 L. Ed. 499 , 34 Sup. Ct. Rep. 239, see, also, Rose’s U. S. Notes), is pertinent. It was claimed in that case, as in this, that a dismissal in equity, without qualifying words, is a final decision on the merits. Mr. Justice Lamas, in expressing the opinion of the court, said:
“Ordinarily such a question [former adjudication] is answered by a mere inspection of the decree — the presumption being that a dismissal in equity, without qualifying words, is a final decision on the merits. That presumption of finality, however, disappears whenever the record shows that the court did not pass upon the merits but dismissed the bill because of a want of jurisdiction, for want of parties, because the suit was brought prematurely, because the plaintiff had a right to file a subsequent bill on the same subject matter, or on any other ground not going to the merits. The scope of such decree must in all cases be measured, not only by the allegations of the bill, but by the ground of the demurrer or motion on which the dismissal was based: Hughes v. United States, 4 Wall. (U. S.) 232, 237 ( 18 L. Ed. 303 ); Mayor of Vicksburg v. Henson, 231 U. S. 259 ( 58 L. Ed. 209 , 34 Sup. Ct. Rep. 95, see, also, Rose’s IT. S. Notes).
The following statement of the rule of former adjudication also is applicable to this case:
“A judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that question in another suit between the same parties; and all matters presented or pre *126 sentable under the issue, either to sustain or defeat the demand litigated in a prior suit, are concluded by the judgment in such prior suit; but to this operation of the prior judgment it must appear either from the record or by extrinsic evidence, that the precise question was raised and determined in the prior suit: Le Grand v. Rixey, 83 Va. 862 ( 3 S. E. 864 ); Jarboe v. Severin, 112 Ind. 572 ( 14 N. E. 490 ).” Note, 8 Am. St. Rep. 229 .
The following observation from this court is in point:
“A question in issue cannot be considered settled by the verdict, when the jury were instructed that such issue was immaterial.” Bingham v. Honeyman, 32 Or. 129 (syl.), ( 51 Pac. 735 , 52 Pac. 755 ).
“To entitle a party successfully to invoke the plea of res adjudicata the decision of a prior suit or action between the same parties must have been rendered upon the merits of the controversy: Van Fleet’s Former Ad., § 30; Hughes v. Walker, 14 Or. 481 ( 13 Pac. 450 ); Glenn v. Savage, 14 Or. 567 ( 13 Pac. 442 ); O’Hara v. Parker, 27 Or. 156 ( 39 Pac. 1004 ); Pruitt v. Muldrick, 39 Or. 353 ( 65 Pac. 20 ); Burnett v. Marrs, 62 Or. 598 ( 125 Pac. 838 ).
“ ‘The judgment is upon the merits when it amounts to a declaration of the law as to 'the respective rights and duties of the parties, based on the ultimate facts or state of facts disclosed by the pleadings, and evidence upon which the right of recovery depends, irrespective of formal, technical, or dilatory objections or contentions.’ 5 Words & Phrases, 4494.
“An examination of the opinion announced in Crow v. Crow, 70 Or. 534 ( 139 Pac. 854 ), will show that all the testimony given at the trial was carefully considered on appeal in order to determine that Henry Gr. Crow was guilty of laches whereby his claim to equitable relief was rendered stale. That decision was within the issues and predicated upon a review of the testimony, thereby rendering the final conclu *127 sion reached a decree upon the merits.” Crow v. Abraham, 86 Or. 99, 103, 104 ( 167 Pac. 590, 591 ).
A leading case is Russell v. Place, 94 U. S. 606, 608 , ( 24 L. Ed. 214 , see, also, Rose’s U. S. Notes). In that case, Mr. Justice Field, in expressing the opinion of the court, observed:
“It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one snit, is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record — as, for example: if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered — the whole subject matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible.”
The case of Teal v. Terrell, 48 Tex. 491 , is directly in point. In that case the court said, at page 508:
“While it is not controverted that as a general principle, the judgment or decree of a court of competent jurisdiction is not only final as to the matters actually determined thereby, but also upon all matters properly involved in the issue passed upon and determined by the court, and that all matters put in litigation in a previous suit, and which could have been adjudicated therein, are concluded by it, * * but certainly it cannot be so held, where the record clearly shows that the matter in question was not, in fact, passed upon or adjudicated by the court.”
*128 By analogy, the following- applies:
“Where the finding of fact on which a conclusion of law is based can be ascertained with certainty from the judgment-roll, such finding will constitute an estoppel.” Doyle v. Hamilton Fish Corp., 234 Fed. 47 (syl.), ( 148 C. C. A. 63 ).
In a note by Mr. Freeman, 56 Am. St. Rep. 445 , it is said:
“An adjudication made on grounds purely technical, and where the merits could not come into question, is limited to the point actually decided, and will not preclude a subsequent action brought in a way to avoid the objection which proved fatal in the first: Converse v. Sickles, 146 N. Y. 200 ( 40 N. E. 777 , 48 Am. St. Rep. 790 ). * * Uncertainty as to what was in fact decided_is fatal to the use of a judgment as an estoppel: Fahey v. Esterly Machine Co., 3 N. D. 220 ( 55 N. W. 580 , 44 Am. St. Rep. 554 ).”
Valuable cases holding that the merits must be determined to constitute former adjudication are found in notes, 18 Am. St. Rep. 785 , 37 Am. St. Rep. 228 , 96 Am. Dec. 785 . See, also, 1 Freeman on Judgments (3 ed.), §§ 260, 266; 1 Herman on Estoppel, § 278; 2 Black on Judgments, §§ 693, 694.
In the recent case of Barnes v. Anderson (Or.), 217 Pac. 836, 838, 839 , Mr. Justice McCotjbt wrote:
“If * * a hearing and decision upon the merits of plaintiff’s claim * * was had * * , the plaintiff is estopped from retrying the same issue in this suit. But, if the * * suit was disposed of on any ground which did not go to the merits of plaintiff’s claim * * , the decree rendered therein does not bar this suit (loc. citation).”
The court further said:
“The record in the foreclosure suit shows beyond question that identically the same issues concerning *129 plaintiff’s title to the land in question as are presented in the instant suit were before the court for determination in the foreclosure suit, and that such issues were necessarily considered and decided therein, and that they were actually heard and determined by the court in that suit, upon identically the same evidence that was submitted in the instant suit, and it also appears that the court had jurisdiction of the parties and of the subject matter.”
Note that the court observes that the issue was actually heard and determined. It further appears in the opinion:
“Both suits were tried by the same judge, who, in the instant case, made the unequivocal declaration, in a finding of fact, that ‘all the matters and things complained of by the plaintiff herein were adjudicated and determined’ in the foreclosure suit. The finding so made is entitled to much weight in determining the question of whether the merits of plaintiff’s claim of paramount title were tried in the foreclosure suit.”
In the instant case Herman C. Haney and others filed suit in a court of equity, seeking to have their water rights determined. The defendants answered. The lower court refused to determine the issue referred to, because of the plain insufficiency of the pleadings to sustain a decree adjudicating the water rights in issue. In the findings of fact and conclusions of law, the court recorded that the issue had not been determined, and sent the plaintiffs out of court by a decree dismissing their complaint. Such a decree, rendered under the circumstances related, does not adjudge the water rights of Haney and others to be the property of the Neace-Stark Company or of anybody else. In a court of conscience, the title to property is not settled that way.
*130 In this canse, as in Barnes v. Anderson, supra, the cases were both tried by the same judge. There is' this distinction, however, between the two cases: In the former hearing of this case the issues were not determined, while in the first trial of Barnes v. Anderson , the issues were “actually heard and determined by the court.” In Barnes v. Anderson, supra, it was held that the finding made by the trial judge was entitled to weight in settling a question as to whether the merits were passed upon in the prior suit of that cause. By the same reasoning, the statement of Mr. Justice Anderson in the instant case is of value when he records in his findings of fact and conclusions of law that the merits of the former case were not decided.
Again, repeating' the rule of evidence as concisely stated by the editors of Encyclopedia of Evidence :
“If it clearly appear from the record that a matter was embraced within the issue raised in the cause, but not decided, the judgment or decree as to such matter cannot be used as evidence between the parties in a subsequent action as to such matter not adjudicated in the former suit.” 7 Ency. of Ev., pp. 832, 833.
And again, let us quote from a standard authority:
“ * * The judgment must be upon the merits in a competent action, the plaintiff having sued in his proper character, and the pleadings having been correct. ‘If the first suit was dismissed for defect of pleadings or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.’ * * A contrary rule would be founded in such rank injustice as to be *131 insupportable, and had such an one been even entertained in the earlier ages of the law, when reason and truth were but too often made to give way before the fancied force of technical subtleties and hair-drawn distinctions, it must long since have succumbed to the enlightened wisdom which tolerates litigation only as a means of administering uniform justice.” 2 Black on Judgments, § 693.
The motion for rehearing is denied.
Rehearing Denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6907997. Public record. Not legal advice.