# Hogle v. Smith

> Supreme Court of Iowa · October 24, 1907 · 136 Iowa 32

URL: https://www.frixlaw.com/law-library/cases/7112626

## Case

- **Full name:** Jessie L. Hogle v. Agnes W. Smith, Administrator of the Estate of Evergene B. Smith
- **Court:** Supreme Court of Iowa
- **Decided:** October 24, 1907
- **Citations:** 136 Iowa 32; 113 N.W. 556
- **Precedential status:** Published
- **Opinion:** Dissent by Weavee
- **Judges:** Deemee, Weavee
- **Cited by:** 21 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/7112626

## Opinion text

Weavee, C. J.
(dissenting.) — The plea of res judicata, or prior adjudication, is among the most familiar known to our procedure, and most of the general rules of the law governing it are well settled; but so great is the multitude and variety of the cases that the boundary lines between those falling within any given rule and those falling within some recognized exception are not always easy to trace. Stated, generally, the fundamental proposition of res judicata, is that a judgment of a court of competent jurisdiction on the merits of any litigated question is a bar to any future suit between the same parties or their privies upon the same cause of action in the same, or any other court so long as that judgment remains unreversed, and not in any way vacated or annulled. 23 Cyc. 1106. As simple as this rule may seem in statement, its analysis and application to a given state of facts are not always obvious. Whether a given record shows a judgment on the “ merits ” of a particular controversy is an inquiry upon which courts and counsel of equal ability, learning, and experience may and often do differ. So, also, the question when and how far extrinsic evidence is admissible to determine what was in fact adjudicated in the former *46 suit, and when and bow far the record of the former judgment is conclusive in all subsequent controversies between the same parties, is a matter upon which it is difficult to harmonize the.precedents.
Turning to the case at bar, let us ascertain, if we may, just what the record seems to disclose as being within the contemplation of the court in entering the final judgment against plaintiff for costs. It will be remembered that said action was begun in equity for the specific enforcement of a contract for the sale of land. The defendants (who are plaintiffs herein) denied the alleged contract, and in a cross-bill asked to have the title quieted in themselves and for judgment against said plaintiff (defendants’ intestate) for the use, rents, and profits of the land. Upon this cross-petition, the plaintiff took issue by denial. Thus it will be seen the pleadings presented two distinct issues; each party affirming one and denying the other. The original decree of the district court upholding the alleged contract and ordering its enforcement involved of necessity the dismissal of the cross-petition. The reversal of that decree upon a finding of this court that Smith had no enforceable contract for a conveyance had the effect to restore the parties to the positions they occupied prior to the entry of said decree. Smith’s petition now stood for dismissal upon the strength of the decision of this court holding his contract to be unenforceable, while' the issue upon the cross-petition stood for trial. Under these circumstances, the district court entered a judgment against Smith for costs. .So far as the record shows, this entry does not expressly dismiss the cross-bill, does not mention it, in fact, and no costs are ordered taxed with reference to it. In my judgment the judgment as entered against plaintiff for costs should be construed as being referable solely to the issue in which he was plaintiff, and on which we had held him not entitled to the relief demanded. If we are to hold that there was an adjudication of the issue taken upon the cross-bill, it must be a matter of inference *47 only, and we think no such inference, certainly no conclusive inference of that nature) is to be drawn from the conceded facts.
The effectiveness of the doctrine of res judicata extends to all matters necessarily involved in the judgment; that is, to every fact which the court was required to find before entering the judgment which is pleaded as a prior adjudication or on which it must necessarily have been founded, but it extends no farther. Porter v. Wagner, 36 Ohio St. 475 ; Hamner v. Griffith, 1 Grant, Cas. (Pa.) 193; Hutchinson v. Dearing, 20 Ala. 798 ; Bank v. Ludlum, 56 Minn. 317 ( 57 N. W. 927 ); Coutant v. Feaks, 2 Edw. Ch. (N. Y.) 330; Church v. Chapin, 35 Vt. 223 ; West v. Platt, 127 Mass. 372 . The conclusiveness of a judgment as an estoppel upon the parties goes only to those matters without proof or admission of which the judgment could not properly have been entered. Burlen v. Shannon, 99 Mass. 200 ( 96 Am. Dec. 733 ) ; Lea v. Lea, 99 Mass. 493 ( 96 Am. Dec. 772 ) ; Zanesville v. Gaslight Co., 1 O. C. D. 123.
Nor does the estoppel extend to matters not expressly' adjudicated, and which can only be inferred by argument or construction from the judgment, except where they are necessary and inevitable inferences in the sense that the judgment could not have been rendered without deciding such points. 23 Cyc. 1297, and note 87. These rules are well established, and their justice and propriety are too self-evident to call for argument in their support. If, then, the record in the former case showed in express terms a dismissal, of the cross-bill on its merits, or contained any statement that the trial court considered or passed upon the claim thereby asserted, or if the terms of the judgment against Smith for costs were such that it could not properly have been entered without passing upon the merits of the cross-bill, it would be difficult, if not impossible, to avoid the plea of prior adjudication, and the appellant would be completely estopped. But none of these conditions exist. There is no *48 order or judgment dismissing the cross-bill on its merits or otherwise, and there is no statement or suggestion that the court passed upon or attempted in any manner to adjudicate the claim presented by that pleading. Moreover, the final disposition of that claim was not essential in order to justify or uphold the judgment entered. To make this clear, let us again recall the fact that the issue affirmed by the appellee’s intestate had been tried out in the court of last resort, and his claim irrevocably adjudged to be without merit. To effectuate that decision that issue had been sent back to the district court to be dismissed. Legally, that issue was as distinct and separable from the appellant’s claim on their cross-bill as if they had been begun and carried through to this point in the proceedings as wholly independent actions. It was right to enter up judgment against Smith for costs, but the utmost effect of such entry was the dismissal of his case and the final termination of the suit he had instituted and pressed. In the absence of some order to that effect, it did not directly, nor could it inferentially, accomplish a dismissal of the cross-action on its merits. The conceded facts of the situation make it perfectly clear that no such result was intended.
The necessary result of the decision that Smith had no enforceable contract for the purchase of the land was to affirm the right of the other parties to recover damages upon their cross-bill for the use of the property while wrongfully held by Smith; and it is incredible that in entering judgment against him for costs, a judgment which followed as a matter of course upon the determination of the appeal adversely to his claims, there was any purpose or intention to foreclose or estop these plaintiffs from asserting that right.
There is- another well-settled rule of law applicable to this class of cases, which may be stated as follows: Where it appears from the record of the proceedings in the former case that several distinct issues have been joined or litigated, on one or more of which the judgment in question may have passed without indicating which of them was thus *49 litigated or -upon wbicb tbe judgment was entered, tbe parties are not conclusively estopped thereby and tbe uncertainty may be removed by extrinsic evidence. Russell v. Place, 94 U. S. 606 ( 24 L. Ed. 214 ); Sawyer v. Nelson, 160 Ill. 631 ( 43 N. E. 728 ) ; Mossman v. Sanford, 52 Conn. 23 ; Am. Emigrant Co. v. Fuller, 83 Iowa, 606 ; Goodenow v. Litchfield, 59 Iowa, 231 ; Davis v. Clinton, 58 Iowa, 389 ; Lewis v. Ocean & C. Co., 125 N. Y. 348 ( 26 N. E. 301 ); Carleton v. Lombard, 149 N. Y. 152 ( 43 N. E. 422 ) ; McMakin v. Towler, 34 S. C. 281 ( 13 S. E. 536 ) ; Humpfuer v. Osborn, 2 S. D. 322 ( 50 N. W. 88 ) ; Dygert v. Dygert, 4 Ind. App. 276 ( 29 N. E. 491 ); Zoeller v. Riley, 100 N. Y. 107 ( 2 N. E. 388 , 53 Am. Rep. 157 ) ; Colwell v. Bleakley, 1 Abb. Dec. (N. Y.) 400; Garrott v. Johnson, 11 Gill & J. (Md.) 173 ( 35 Am. Dec. 272 ) ; Grim v. Griffith, 34 Ind. App. 559 ( 73 N. E. 197 ) ; Linton v. Crosby, 61 Iowa, 293 ; Baker v. Thompson, 151 Mass. 390 ( 24 N. E. 399 ); Miles v. Caldwell, 69 U. S. 35 ( 17 L. Ed. 755 ); Packet Co. v. Sickles, 72 U. S. 592 ( 18 L. Ed. 550 ); Washington, etc., Co. v. Sickles, 65 U. S. 333 ( 16 L. Ed. 650 ) ; Perkins v. Walker, 19 Vt. 144 ; Griffith v. Fields, 105 Iowa, 366 ; Lindley v. Snell, 80 Iowa, 109 ; Paine v. Ins. Co., 12 R. I. 440; Cook v. Burnley, 45 Tex. 97 ; Ereeman on Judgments, sections 272, 273; Chrisman v. Harmon, 29 Gratt. 494 ( 26 Am. Rep. 387 ); Cromwell v. Sac. Co., 94 U. S. 351 ( 24 L. Ed. 195 ) ; Munro v. Meech, 94 Mich. 596 ( 54 N. W. 290 ); Follansbee v. Walker, 74 Pa. 306 ; Coleman’s Appeal, 62 Pa. 252 ; Embden v. Fisherman, 89 Me. 578 ( 36 Atl. 1101 , 56 Am. St. Rep. 442 ); Perkins v. Parker, 10 Allen (Mass.) 22; Haas v. Taylor, 80 Ala. 459 ( 2 South. 633 ) ; Sanderson v. Peabody, 58 N. H. 118; Gilbreath v. Jones, 66 Ala. 129 ; Davidson v. Shipman, 6 Ala. 27 ; Hooker v. Hubbard, 102 Mass. 239 ; Porter v. Wagner, 36 Ohio St. 471 ; Van Valkenborg v. Milwaukee, 43 Wis. 574 ; Brown v. Weldon, 34 Mo. App. 381 ; Smith v. Talbott, 11 Ark. 667 ; Barber v. Kendall, 37 N. Y. Supp. 141 ( 1 *50 App. Div. 247 ); Auqir v. Ryan, 63 Minn. 373 ( 65 N. W. 640 ) ; De Sollar v. Hanscorne, 158 U. S. 216 (15 Sup. Ct. 816, 39 L. Ed. 956 ); Bergerson v. Richardott, 55 Wis. 129 ( 12 N. W. 384 ). Indeed, it will be difficult to cite a court of last resort in the United States which has not affirmed the proposition that, where the record fails to show upon which of several issues the prior judgment was entered, extrinsic evidence may be admitted to establish the fact.
Perhaps the most frequently cited precedent upon the point is Russell v. Place, supra, decided by the Supreme Court of the United States, although the rule had been frequently applied in earlier cases. It is there stated that, to effect a conclusive estoppel by prior adjudication, “ it must appear either upon the face of the record or shown by extrinsic evidence that the precise question was raised and determined in the former suit. If there be any uncertainty on this head, 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 the 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.” This language was quoted by us with approval in Griffith v. Field, 105 Iowa, 362 , and held applicable to a plea of former adjudication where we say: “We think there is no doubt that the same facts were at issue in the two cases, but, instead of it appearing in the other case that the issue as to the breach of contract was determined, it seems quite clear that it was not. The burden is with the defendant in this case to make it appear that the issue was determined. . . . Without question, there were two issues presented in that case. The most that can *51 be said in tbe appellant’s favor is that it does not appear on which issue the result was reached.” Under somewhat analogous circumstances, we applied the same rule in Lindley v. Snell, 80 Iowa, 103 , saying: “The silence of the decree leaves it uncertain that this issue was determined even if it was certain that it was raised by the pleadings.” The doctrine of these cases so lately and repeatedly affirmed by this court is wholly ignored and discredited by the majority opinion now handed down.
In Porter v. Wagner, 36 Ohio St. 471 , Wagner had brought a prior action for specific performance, which Porter contested, and joined with his answer a cross-petition to rescind the contract and to recover advance payments made by him. The court finding Wagner not entitled to specific performance, the suit was dismissed, and thereafter Porter brought action at law to recover on the same demand which he had pleaded as a counterclaim in former action, and to this claim Wagner pleaded the decree above referred to as a prior adjudication. The defense was not allowed, the court saying, in substance, that, in view of the fact that two or more issues were involved in the prior litigation, the question to be decided was not what the court might have decided but what it did in fact decide. It is said by the Alabama court that, to come within the rule of res judicata, “ the issue must be broad enough to embrace the subject, it must, in fact, have been considered or be so blended with the subject considered as to have become a qualifying part of it, and it must have been decided upon its merits.” Haas v. Taylor, 80 Ala. 459 ( 2 South. 633 ). Where several issues appear to have been joined in the former action, and doubt arises as to whether one of them was or was not determined by the judgment, the testimony of the judge who tried the case has been held admissible upon the question. Perkins v. Brazos, 66 Conn. 242 ( 33 Atl. 908 ) ; Wood v. Faut, 55 Mich. 185 ( 20 N. W. 897 ) ; Follansbee v. Walker, 74 Pa. 306 . See, also, Insurance Co. v. Mardoff, 152 Pa. *52 22 ( 25 Atl. 234 ) ; Palmer v. Sanger, 143 Ill. 34 ( 32 N. E. 390 ) ; Wood v. Jackson, 8 Wend. (N. Y.) 36 ( 22 Am. Dec. 603 ); Dunlap v. Glidden, 34 Me. 517 . Such evidence is universally considered as not being in contradiction of the record, but in aid of' it. The burden of establishing 'the claim of prior adjudication is upon the party pleading it, and, if it does not clearly appear from the record presented, it must be sustained by extrinsic evidence, and becomes a question for the jury. Griffith v. Field, 105 Iowa, 366 ; note to Fahey v. Esterly, 3 N. D. 220 ( 44 Am. St. Rep. 563 ). The evidence in support of the plea must be such as to remove all uncertainty. These conclusions do not detract from the authority of the general rule cited by the appellee, that a party cannot relitigate matters which he might have had determined in a prior action in which final judgment has been rendered. As with all general propositions, care must be observed in its application, otherwise that which is intended as a beacon light for our guidance becomes a source of radical error. In a certain sense, it is true that a party may not relitigate in a second action that which he might have settled in a former action; but-, if construed in the broadest sense of the terms thus stated, it is both incorrect and misleading. A plaintiff cannot split up his cause of action, and try it in piecemeal, and a defendant who has or claims to have one or more defenses to an action brought against him must present them all. An issue once joined and determined on its merits by a court of competent jurisdiction is settled forever or until the judgment be reversed or vacated in some direct proceedings for that purpose; nor will the fact that such judgment is wrong or even grossly erroneous prevent the operation of the rule. But, on the other hand, the fact that a plaintiff has two or more causes of action which could have been united in a single suit and fails to do so, or the fact that a defendant has affirmative demands against the plaintiff which he' could plead as a counterclaim or basis of a cross-action, but fails to do so, *53 does not necessarily afford any ground for a plea of prior adjudication to a subsequent suit brought thereon. When the parties do unite in the same action various independent claims, counterclaims, and cross-demands, a judgment which adjudicates their rights upon one issue does not necessarily determine the other issues, except so far, as it sometimes happens, as such other issues are so interwoven with and dependent upon the one decided that they must as a matter of course stand or fall with it. In my judgment the majority opinion ignores these well-established rules and accomplishes manifest injustice.
The trial court erred in directing a verdict for the defendant, and a new trial should be ordered.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7112626. Public record. Not legal advice.