The opinion
Simmons, C. J,,
dissenting.
The court, in my opinion, reaches a conclusion here that is unsound and unjust. In doing so it ignores many of our decisions of long standing, overrules in effect several decisions to which no reference is made, and finally reaches a revolutionary construction of a long-established and construed provision of our code of civil procedure.
The right of the plaintiffs to assert and have tried the issue of damages here involved is a valuable property right. It is proposed that it be largely denied. The basis of the denial is a procedural rule which is sound when properly applied. If there be doubt as to the application of the rule, we should follow that which protects and does not deny a property right. Here, as I see it, it is proposed that the rule be erroneously stated and applied, with the result that a grave injustice is to be done not only to these plaintiffs but to others that hereafter may be similarly situated.
A summary statement of the litigation involved is necessary. All italics appearing herein indicate emphasis supplied by me.
In Bahm v. Raikes, 160 Neb. 503 , 70 N. W. 2d 507 , the Wischmanns and others proceeded in equity to secure “an injunction, preventive and mandatory” to abate a nuisance. That was the only issue tried in the district court and in this court on trial de novo. There was no issue of damages pleaded, attempted to be proven, or determined.
In the instant case the Wischmanns brought a law action to recover for destruction of crops, for preventing *753 planting and harvesting of crops, for loss of livestock, and for damages to fences. 167 Neb. 251 , 92 N. W. 2d 708 . They did not seek to recover damages to land. So the former litigation was solely an action in equity for an injunction. The instant case is solely an action at law for the recovery of property damage, excluding damage to land.
Of course in the injunction action damages to crops and land were shown as an incident to the proof of a right to injunction. It does not follow that evidence of damages to crops and land as a foundation for proof of damages was an issue or was determined in the former action. . Our opinion in the first case makes . no reference to damages as a recoverable item and of necessity they were neither proven or determined. It is elementary that there is a material distinction between the two kinds of proof. The court holds that the plaintiffs may not “split” their “cause of action and in separate actions ask for two different types of relief when each type of relief is fundamentally based on the same facts or cause of action.”
As above pointed out, the facts to prove an injunction action may be in part the same as the facts to prove a damage action, but in other respects are materially different. The court fails to recognize that elementary fact.
Insofar as the prayer for “two different types of relief” is concerned the holding is directly contrary to our holding in City of Alliance v. Cover-Jones Motor Co., 154 Neb. 900 , 50 N. W. 2d 349 , wherein we held that the relief sought “is no part of the cause of action.”
I submit that the court is in error on both of the premises on which it predicates this feature of its decision.
There is no dispute as to the correctness of the rule of law stated in the first syllabus point prepared by the court: “It is a fundamental principle of jurisprudence that material facts or questions which were an issue in *754 a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action.”
That rule is by its terms applicable when a question has been “an issue” and “judicially determined” in a former action. The rule is not applicable to the situation which we have here. The quoted rule is taken from Blum v. Truelson, 139 Neb. 282 , 297 N. W. 136 . It in turn relies solely on a quote from an opening statement in American Jurisprudence which is now 30A Am. Jur., Judgments, § 371, p. 411. That it has no application here is shown by other statements in the following texts: “Where a second action is upon a different claim, demand, or cause of action, the established rule is that the judgment in the first action operates as an estoppel only as to the points or questions actually litigated and determined, and not as to matters not litigated in the former action, even though such matters might properly have been determined therein. Accordingly, the view is generally taken that before the doctrine of res judicata is applied in such cases, it should appear that, the precise question involved in the subsequent action was determined in the former action.” 30A Am. Jur., Judgments, § 373, p. 418. See, also, Burke v. Munger, 138 Neb. 74 , 292 N. W. 53 ; State ex rel. Caldwell v. Lincoln Street Ry. Co., 80 Neb. 333 , 114 N. W. 422 , 14 L. R. A. N. S. 336; Slater v. Skirving, 51 Neb. 108 , 70 N. W. 493 , 66 Am. S. R. 444 ; Haines v. Flinn, 26 Neb. 380 , 42 N. W. 91 , 18 Am. S. R. 785 ; Gayer v. Parker & Son, 24 Neb. 643 , 39 N. W. 845 , 8 Am. S. R. 227 .
“As far as subsequent proceedings under a different cause of action are concerned, the doctrine of res judicata is held not to apply to issues raised in the previous case which were not passed on by the court or jury in deciding it.” 30A Am. Jur., Judgments, § 374, p. 421.
*755 “If a matter was actually in issue in a former proceeding and judicially determined therein, the matter is conclusively settled by the judgment rendered in such proceeding. However, the conclusiveness of a judgment is confined to the thing in controversy, or in issue as determined from the pleadings.” 30A Am. Jur., Judgments, § 375, p. 422.
“It is generally declared that a judgment operates as res judicata only with respect to matters which were necessarily involved or determined in the former proceedings, or only with respect to the facts and matters necessary to uphold the judgment.” 30A Am. Jur., Judgments, § 377, p. 425.
“Questions passed upon in the opinion of a court in rendering a judgment are not necessarily within the doctrine of res judicata. The reasoning and opinion of the court upon a subject, on the evidence before it, do not have the force and effect of the thing adjudged, unless the subject matter is definitely, disposed of by the judgment of the court.” 30A Am. Jur., Judgments, § 380, p. 429.
“Where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action, except as stated in §§ 69, 71 and 72. * * *A judgment on one cause of action is not conclusive in a subsequent action on a different cause of action as to questions of fact not actually litigated and determined in the first action.” Restatement, Judgments, § 68, p. 293.
Tested by these rules I submit that the stated rule here discussed has no applicability to the situation before us.
There is no dispute here about the rule stated in the second syllabus point prepared by the court: “Where cases are interwoven, and interdependent and the controversy involved has already been considered and de *756 termined by the court in former proceedings involving one of the parties now before it, the court has the right to examine its own records and také judicial notice of its own proceedings and judgments in the former action.” It relates to “interwoven and interdependent” controversies that have been considered and determined. There can be no contention here that the issue of property damage was interwoven or interdependent with the issue of injunction and most certainly property damage was not “considered and determined” by the court.
The fourth syllabus point as prepared by the court is as follows: “An adjudication by this court extends to all matters decided expressly or by necessary implication and not alone to the questions actually and formally presented but to all existing in the record and necessarily involved in the decision.” This is quoted from Anderson v. Anderson, 155 Neb. 1 , 50 N. W. 2d 224 . The sole authority for it is Kuhns v. Live Stock Nat. Bank, 138 Neb. 797 , 295 N. W. 818 . What was the Kuhns case? It involved this rule: Matters expressly, or by distinct and necessary implication, adjudicated at a former hearing, will not be considered again in the same case. It turned upon the “law of the case” rule as the opinion clearly shows. Obviously it has no bearing here. What was the Anderson case? The first action was one to quiet title. The second action was one for partition. We stated: “* * * the over-all contention in the suit to quiet title to the land and in this partition action was and is the- ownership of the land, * * *.” Appellants “attempted in each of the actions to put in issue two questions of fact” which were “both adjudicated adversely to appellants in the suit to quiet title.” On that statement of fact we held that the determination of the first case was “final and binding” in the second case.
We quoted the rule stated in syllabus point 1 by the court, and the rule here discussed. When Anderson v. Anderson, supra, is analyzed and its rules applied *757 to the question being decided, it gives no support to the position now taken by the court.
Syllabus point 5 as prepared by the court is as follows: “The plea of res judicata applies, except in special cases, not only to points upon which the. court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation arid which the parties exercising reasonable diligence might have brought forward at the time.”
Syllabus point 6 as prepared by the court is as follows: “A litigant may not be permitted to split a cáuse of action or preserit ah issue for determination' and avoid the effect of an estoppel by withholding proof of it.”
Both are direct quotes from statements made in Anderson v. Anderson, supra. I have already discussed the fact situation that was being décided in the Anderson case. I refer now briefly to the authorities cited in Anderson v. Anderson, supra, to sustain the text:
Boomer v. Olsen, 143 Neb. 579 , 10 N. W. 2d 507 . The first syllabus point in that case is: “Whether a former judgment is a bar to an action ordinarily depends on whether the same evidence will sustain both the present and former action, and when it appears that different proof is required, a judgment in one of them is no bar to the other.” If appears obvious that in a damage action “different proof is required” than in an injunction action to abate a nuisance. The second syllabus point in the Boomer case is: “Where the parties stipulated a single issue in the former action, a plea of res adjudicata is of no avail in a subsequent action between the same parties where it appears that the issues are outside the scope of the stipulation.” Here insert “pleadings in the first case” for “stipulation” and the rule is: Res judicata is of no avail in a subsequent action between the same parties where it appears that the issues are outside the scope of the pleadirigs in the first case.
*758 At the expense of repetition I point out that there is no contention here that damages as such were an issue in the first case.
The next case cited is Williams v. Beckmark, 150 Neb. 100 , 33 N. W. 2d 352 . A mere statement of the facts of that case, taken from the opinion, shows it has no bearing on the question presented here: “The present action is between the same parties as the former. They both involved the recovery of accrued rentals and damages for the unlawful possession of the same property. The relevant evidence in the case at bar was practically identical with that in the former. The only difference in the two defenses was that in the former action defendant prayed for relief under the Occupying Claimants Act and for such other relief as might be just and equitable, while in the case at bar defendant sought only the latter relief.”
The third and final case cited to sustain syllabus points 5 and 6 is Pettijohn v. County of Furnas, 150 Neb. 736 , 35 N. W. 2d 828 . This began as a tax foreclosure case resulting in a decree that all proceedings, including the treasurer’s return of a public sale, were regular. Plaintiff later brought an action attacking the regularity of the proceedings. We held: “Under such circumstances the decree of the district court was a final determination of the issues before it and such decree is not subject to collateral attack.” Plaintiff asserted a material alteration of the tax sale certificates. We held: “What we have heretofore said about collateral attack is applicable here. The plaintiff here was a defendant in the tax sale certificate foreclosure and was personally served with summons. If she had any defense to the action she was obliged to assert it there. The finding of the court that the tax sale certificates were properly and lawfully made, and entitled to be foreclosed, constitutes a final adjudication of that issue in so far as the parties to that action are concerned.”
Accordingly I submit that syllabus points 5' and 6, *759 when analyzed in the light of the case decided and the cases cited to sustain the decision, do not support the application now given to them.
This brings us to syllabus point 7 as prepared by the court: “It is a well-settled principle of equity jurisprudence that, where a court of equity has obtained jurisdiction of a cause for any purpose, it will retain it for all, and will proceed to a final determination of the case, adjudicate all matters in issue, and thus avoid unnecessary litigation.”
Here the court in applying the rule reads out of it the words “adjudicate all matters in issue.” That is the material element in the rule.
The syllabus point is a quote from Schreiner v. Witte, 143 Neb. 109 , 8 N. W. 2d 831 . That case holds directly to the contrary of the application which the court now makes of the cited rule. There plaintiff brought an action in equity to foreclose a chattel mortgage. The defendant denied generally and by cross-petition advanced three causes at law: (1) Damages for breach of a partnership agreement; (2) a recovery of one-half of personal taxes; and (3) recovery for goods sold and delivered. Plaintiff answered the cross-petition by denying causes (1) and (2) and admitting cause (3). The court found for the plaintiff on his petition and on defendant’s causes (1) and (2) and entered judgment for defendant on cause (3). The court denied a deficiency judgment. Plaintiff appealed. We held: “The defendant in the instant case submitted himself to a court of equity, set up his defense by way of cross-petition, and affirmatively alleged damages, that plaintiff was indebted to defendant for merchandise purchased and personal taxes paid by defendant.” We followed that by a statement of the rule quoted as syllabus point 7. We then held: “The plaintiff in the instant case followed the correct procedure. The defendant is not now entitled to a jury trial. He voluntarily brought a law issue into the case. He had a right, if he was so minded, to file *760 his amended cross-petition for damages in this equity-suit. It was an independent cause of action, existing in defendant’s favor, and would not be lost to him, or barred, if he had left it out of this suit.”
I fail to see where the court gets support out of that decision.
The court quotes from Wheeler v. Brady, 126 Neb. 297 , 253 N. W. 338 , but does not dignify it by making it a syllabus point. I quote the quotation used by the court, with the unanswered question in my mind as to where the court applies that rule, or follows it, of gets support from it: “ ‘Any right, fact or matter in issue, and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose, or sübject-matter of the two suits is the same or not.’ ”
Wheeler v. Brady, supra, originated as an action to quiet title to real estate. A deed was involved. The trial court held that the deed was testamentary in character and not executed in accord with the law pertaining to the execution of wills. We affirmed. Then the second action was brought to reform the deed and to quiet title by the defendant in the first action. We held: “The former decision is not of course an adjudication that the contract cannot be reformed. That question was not presented nor considered at that time. That suit only decided that the purported deed as it stood did not convey title to the real estate in question, because it was testamentary in character, but since it was not executed according to the law relating to wills, title to a portion of the property was quieted in the other heirs at law. The cases in which the fundamental principles of res judicata are discussed are legion. * *' * The right of reformation was not a right, fact, *761 or '¡natter litigated in the first suit 'and the judgment therein was not a bar to this -suit.” - .
We cited the rule which the court quotes. It was taken from 34 C. J., Judgments, §1154, p. -743.- If an action to quiet title is not res judicata of an action to reform a deed and quiet title, then certainly an action in equity to enjoin a nuisance-is not res judicata of an action for damages , at law.
The court, after more discussion and quotations from decisions to which I shall refer presently, then holds that “the doctrine of res judicata includes not only the things which were determined in the former suit, but also any other matter properly involved which might have been raised and determined.”
About the first clause of this holding there is no dispute. I submit that the second clause (which I have emphasized) is contrary to the very decisions of this court which I have' referred to herein and which the court quotes in part.
Cromwell v. County of Sac, 94 U. S. 351 , 24 L. Ed. 195 , is cited and followed repeatedly in these cases. It holds that: “In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.”
I now refer to a series of our decisions that are exactly to the contrary of the rule now announced by the court.
Wilcox v. Saunders, 4 Neb. 569 , was decided in 1876. In that action Saunders had sued Wilcox in equity for specific performance of a contract to convey land. In that action Saunders specifically prayed for damages to the land. The issue of damages was tendered. The trial court decreed specific performance and specifically *762 did not determine the issue of damages. The judgment became final. Saunders then sued Wilcox in tort for damages for trespass “upon the same premises in controversy in the former suit.” So there was in that case first an equity action for specific performance and then a law action for damages. The court held as to the issue of damages that when the trial court, in the first action, dismissed the issue of damages “they were left in the same condition precisely as if they had never been brought into the case In the case now being decided damages were never “brought into the case.” The court held it was not necessary to decide whether or not damages “could have been joined” in the former action and that only questions “determined” remained determined. The court, however, considered the question and held that damages “might be” included in the former action.
In the second action at law for damages, Saunders secured a verdict and judgment. We affirmed the judgment. Wilcox v. Saunders, supra, is the earliest of our decisions on the matter. It has been repeatedly cited favorably. I shall refer to one of the decisions later. It has never been criticized or modified. There it stands since 1876. It is now ignored by the court.
I next go to Herpolsheimer v. Acme Harvester Co., 83 Neb. 53 , 119 N. W. 30 . In the body of the opinion we held: “Where issue has not been joined nor any trial had on the merits, the doctrine of res judicata does not apply.” That exactly describes the situation in the instant case. In the syllabus point prepared by the court we stated: “Where cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in former proceedings involving one of the parties now before it, the court has the right to examine its own records and take judicial notice of its own proceedings and judgments in the former action.”
In Bowker v. Drainage District, 102 Neb. 571 , 168 *763 N. W. 193 , we held: “A judgment is not res judicata of a matter not involved and tried in the action. * * It is quoted with approval in Lincoln Nat. Bank & Trust Co. v. Grainger, 129 Neb. 451 , 262 N. W. 11 , wherein we held: “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. Such, judgment will not so operate, unless it appears either on the face of the record or is shown by extrinsic evidence that the precise question was raised and determined in the former suit.”
I next cite Gulizia v. Royal Indemnity Co., 139 Neb. 832 , 299 N. W. 220 . In that case we followed Plattsmouth Bridge Co. v. Turner, 128 Neb. 738 , 260 N. W. 562 , and reaffirmed this rule: Judgment is not res judicata as to any fact at issue in subsequent action where neither issues nor parties are the same. In both of the above cases the parties to the second action were not the same as those in the first. We pointed that out in the opinion. We also pointed out that “neither were the issues identical” in the Plattsmouth case; nor “was the * * * liability of the insurer as to the claim * * * involved” in the Gulizia case. The opinion in the Gulizia case was written by the same judge who is the author of the instant decision.
The above rule was restated and followed in Kuhl v. School District, 155 Neb. 357 , 51 N. W. 2d 746 . The opinion was adopted by six of the seven members now on the court. Two of the six of us now adhere to our former decisions.
I now go to two of our decisions, which the court considered at length. They are Ledingham v. Farmers Irr. Dist., 135 Neb. 276 , 281 N. W. 20 , and Shepard v. City of Friend, 141 Neb. 866 , 5 N. W. 2d 108 .
I first take up Ledingham v. Farmers Irr. Dist., supra. This opinion was written by Judge William B. Rose, who for over a third of a century was one of the ablest judges to serve on this court. The court now under *764 takes to distinguish- the Ledingham case from the instant case by reaching the conclusion -that damages were no part of the cause of action in the first- case. How-*ever, the theory upon which it might have been written is not controlling and should not concern us.
In that decision we. stated the contention of res judicata as follows: “Defendant urges the further defense that the cause of action in which equitable relief was granted to plaintiff in the former suit nécéssarily included the damages allowed herein and precluded recovery therefor in the action at bar. It is argued that the entire ■ controversy involving the equitable relief granted and the subsequent recovery of damages in the present action at law was determinable in the former suit in equity and that the splitting of what defendant calls a' single cause of action is condemned as wholly untenable.”
It was that contention which the court decided and which in effect is the contention made here .which the court now sustains. How did we decide it? We .held: “Damages were not pleaded, presented, proved or determined in the former case. There is some diversity of judicial opinion on this subject in vast fields of litigation, but the better view seems to be that, in, a situation like the present, the granting of an injunction is not necessarily a bar to an action at law for damages caused by the wrong enjoined.”
The Ledingham case cannot be brushed aside by conceiving some other basis upon which it might have been decided and reach the same result.
In the Ledingham case we followed Perdue v. Ward, 88 W. Va . 371, 106 S. E. 874 , 14 A. L. R. 539, “and cases cited in note in 14 A. L. R. 543.” There can- be no question, from that annotation what was being decided. In Perdue v. Ward, supra, the court refused to follow Gilbert v. Boak Fish Co., 86 Minn. 365 , 90 N. W. 767 , 58 L. R. A. 735. The annotation shows that this case *765 is .the “only authority” contrary to Perdue v. Ward— and this court followed Perdue v. Ward.
Our decision in the Ledingham case further rested on Chapman v. General Petroleum Corp., 152 Or. 147 , 52 P. 2d 190 . I quote two paragraphs from that opinion:- .“The defense is based upon, two major propositions: ' (1) That res adjudicata precludes plaintiffs from recovering damages in the instant action for the reason that they had an opportunity to adjudicate such matter in the suit instituted in December, 1931; that, equity, having assumed-jurisdiction, was.able to grant complete relief and thereby avoid a multiplicity of suits; (2) that there is no evidence to support the finding of the jury that plaintiffs had sustained damage in the amount awarded, or in any sum. * * * The authorities in other jurisdictions, relative to the' applicability of res adjudicata in such cases, are in conflict (see cases in note 14 A. L. R. 543), but in this state it is not an open question. In Norwood v. Eastern Oregon Land Co., 139 Or. 25 , ( 5 P. (2d) 1057 , 7 P. (2d) 996 ), the identical point was decided adversely to the contention of the appellant herein. It will be remembered that the question- of damages was not an issue in the equity proceeding. We see no need to restate the law.” The language is applicable here. There Oregon followed the same authority that we followed in the Ledingham case and in their own decision in Norwood v. Eastern Oregon Land Co., 139 Or. 25 , 5 P. 2d 1057 , 7 P. 2d 996 . The latter case was one where the plaintiff had a decree for an injunction. He then sued for damages. Res judicata was offered as a defense. The court held: “In White v. Ladd, 41 Or. 324 , ( 68 P. 739 , 93 Am; St. Rep. 732), it is said: ‘The potency of a judgment as an estoppel concludes every fact necessary to uphold it and extends, not only to matters actually determined, but to every other matter which thé parties might have litigated and have had decided as incident to and essentially connected with the Subject matter of the litigation, *766 and every matter coming within the legitimate purview of the original action, * * *.’
“The evidence relative to the issue of damages was not essential to the validity of the decree for injunction. The question of damages was merely incidental to the main relief sought in the equity proceeding. It was not necessarily involved therein. In the instant action there is a different claim or demand than was at issue in the injunction suit, hence the decree therein is no bar here.” This language is applicable here.
The court refused to follow Gilbert v. Boak Fish Co., supra, and stated that the contra rule followed by it was in accord with the “weight of authority.” It relied on Perdue v. Ward, supra, and cases cited in 14 A. L. R. 539.
The Oregon Court tied its decision to ours. It quoted at length from “the best statement of the rule” found in Cromwell v. County of Sac, supra.
We relied on and quoted from the Cromwell case in Hanson v. Hanson, 64 Neb. 506 , 90 N. W. 208 . We relied on it again in Gering v. School District, 76 Neb. 219 , 107 N. W. 250 . We described the Cromwell case as one “recognized by all text writers.” We held that: “* * * where the second action is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue upon the determination of which the judgment was rendered.”
Notwithstanding the direct positive refusal of this court to follow Gilbert v. Boak Fish Co., supra, on the precise issue here involved, the court now quotes from it with approval. The court’s justification for so doing is that Gilbert v. Boak Fish Co., supra, was cited with approval in Brchan v. The Crete Mills, 155 Neb. 505 , 52 N. W. 2d 333 . It was so cited, but for a rule that is not in dispute here. The mere fact that the case was so cited does not justify the overruling, in effect, of the Ledingham case and the adoption of a contrary rule that was rejected after consideration of the precise question. I would adhere to the Ledingham case rule.
*767 At this point it may be well to quote from 1 Am. Jur., Actions, § 103, p. 486, where under the title “Legal and Equitable Relief” the text states: “* * * although there is authority to the contrary, it is held that a suit for an injunction is not a bar to a later action for past damages on account of the thing enjoined, where there was no prayer for damages in the prior suit and no award of damages made.” The “contrary” case is Gilbert v. Boak Fish Co., supra, which we refused to follow in the Ledingham case. The rule is that of Perdue v. Ward, supra, which we followed in the Ledingham case.
Before going to other cases of this and other jurisdictions, I cite other texts which are considered as authority.
In 50 C. J. S., Judgments, § 657, p. 102, this rule is stated: “A judgment on the merits, rendered in a former suit between the same parties or their privies, on the same cause of action, by a court of competent jurisdiction, operates as a bar not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action. In other words, he must present his whole case, extending his claim so as to embrace everything which properly constitutes a part of his cause of action or defense, and cannot bring a new suit to recover something more on the same cause of action.
“The general rule does not mean, however, that the prior judgment is conclusive of matters not in issue or adjudicated, and which were not germane to, implied in, or essentially connected with, the actual issues in the case, although they may affect the ultimate rights of the parties and might have been presented in the former action, and is not applicable to issues the trial of which rests within the discretion of the court. Moreover, it has also been held that the rule cannot properly be invoked as to an issue which affirmatively ap *768 pears not to have been determined by the judgment in the former action.”
Here our Wightman v. City of Wayne, 144 Neb. 871 , 15 N. W. 2d 78 (a case cited by the court’s opinion), is relied on. But that rule relates to the splitting of a cause of action, a situation erroneously- assumed by the majority opinion to exist here. This is made clear by the following paragraph of 50 C. J. S., Judgments, § 658, p. 104: “As discussed supra. § 657, the rule that a judgment is res judicata as to every matter which might with propriety have been litigated and determined in the action does not mean that a prior judgment is conclusive of matters not in issue or adjudicated, and which were not germane to, implied in, or essentially connected with, the actual issues in the case, although they may .affect the ultimate rights of the parties and might have been presented in the former action. Accordingly distinct rights, claims, or demands of the parties growing out of the same subject matter, but which were not put in issue or necessarily involved or adjudicated in a prior action have been held not to be barred by the judgment therein.” Here our Ledingham case is cited along with others from several jurisdictions..
I now desire to call attention to Triska v. Miller, 86 Neb. 503 , 125 N. W. 1070 , cited but not discussed in the majority opinion. The holding there is: “A, judgment on the merits constitutes an absolute bar to a subsequent action founded upon the same claim or demand, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand,'but also as to any other admissible matter which might have been offered for that purpose.” It shows that the bar of the former action relates to the “claim or demand” and not the cause of action.
Woodbury v. Porter, 158 F. 2d 194 , was an action for damages. Plaintiff in á former proceeding had secured an injunction. The defendant contended that' there *769 was a splitting of causes of action. The court denied that contention. It held: “If the same evidence will support both actions there is deemed to be but one cause of action. Of course, the mere fact that the same evidence may be admissible under the pleadings in each action is not necessarily controlling, but even though the evidence may be admissible and is in part the same, but the subject matter is essentially different, the actions are not identical. In the final analysis the test would seem to be whether the wrong for which redress is sought is the same in both actions. (Citing case.) The mere fact that different demands may spring out of the same act or contract does not itself render a judgment on one a bar to a suit upon another. * * * The first suit was an injunction action, while the second suit was for damages. The pleadings in the action for damages would be wholly inadequate as a basis for an injunction. To sustain an action for injunction it would be necessary to plead and prove threatened violations of the act and it has been held that if it is clear that violations will not be repeated, an injunction cannot be obtained as the purpose of an injunction is to prevent continued wrongful acts rather than to redress past grievances. (Citing case.) No such pleading nor proof would be essential in the action to recover damages.”
In Morency v. Plourde, 96 N. H. 344, 76 A. 2d 791 , the court held: “Where damages in injunction proceedings are neither sought nor granted, the injunctive relief is not a bar to the law actions for damages on account of the thing enjoined.” It relied on Woodbury v. Porter, supra, and Perdue v. Ward, supra, upon which we relied in the Ledingham case.
I now go to the case of Shepard v. City of Friend, supra, from which the court quotes and sustains the quotation by quote from Gilbert v. Boak Fish Co., supra, which I have discussed above.
The opinion in the Shepard case was written by Judge Yeager. Judge Yeager analyzed the Shepard case in *770 the, now withdrawn, opinion in this case in 167 Neb. 251 , 92 N. W. 2d 708 . The court does not now criticize his analysis of that opinion.
The court now quotes from parts of two paragraphs of that opinion. The quote appears in that part of the opinion which related to the following contention. It was used in answer to it: “It then becomes necessary for us. to sustain the judgment of the district court unless it may be said, as plaintiffs contend, that1 this case comes within the rule that, where a party mistakenly chooses a remedy that is not available to him, he- is not under the doctrine of res adjudicata barred from availing himself of the proper remedy.”
The court ignores the question decided before we reached the above matter — and in doing so overlooks the fact that the issue now presented here was decided in the Shepard case contrary to the present decision.
In the second case the trial court, with reference to the decree in the first case, held: “ ‘Said decree was'more than a judgment that no enjóinable nuisance existed. It was, in effect, a determination that the defendants had a legal right to flowage and that rio liability for damage therefrom existed in favor of the plaintiffs. This decree disposed of the primary issue of any claim for damages, namely, liability for damages, and therefore made it wholly immaterial and unnecessary to go into the matter of the quantum of the' alleged damages/ ” The trial court’ decided that the issue of damage's had been determined in the first action. We affirmed on the following basis, citing our decisions: “The defense of res adjudicata becomes available when a question- of fact has been put directly in issue in an action between the same parties or their privies and an adjudication had thereon. (Citing cases.)' Under the doctrine of res adjudicata, when a question of fact is drice determined, on the merits, that question is settled, so far as the litigants and those in privity are concerned. Such question'When decided cannot be relitigated'between the same parties *771 or their' privies.” Obviously that case is not the instant case, but the rules of law followed there determining the question of res judicata require a denial of the plea here. This is made clear at the conclusion of the opinion Whéré we held “if there was a finding of fact in * * * the equity action, or the action at law on the same issues of fact, as were presented in the action *' * * before the court, such finding would be res adjudicata.”
I concur with Judge Messmore in his conclusion that the ;Ledingham case is in effect overruled by the court’s present decision. To that I add that the opinion in Shepard v. City of Friend, supra, is likewise overruled on .the issue here presented.
I now go to the “basis for the breadth of this rule” which the court now adopts. It is that because of the code provision there “has been a complete merger of legal and equitable remedies.” The code provision is section 25-101, R. R. S. 1943, which is: “The distinctions between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and in their place there shall be hereafter but one form of action, which shall be called a ‘civil action.’ ”
The court quotes to sustain its rule Hopkins v. Washington County, 56 Neb. 596 , 77 N. W. 53 . The quoted provision is requóted here to show by emphasis the scope of that decision: “In this state there is but one form of:action, to be called a ‘civil action,’ (Code of Civil Procedure, sec. 2); but the distinction between law arid equity is not abolished. There is one. form of action, in which either relief may be sought and obtained; and if the facts pleaded and proved demand, the -rules of either law or equity, or both, may be enforced.” - Obviously we are not here presented With a case where facts were pleaded and proved in the former action. No one contends that such is.the case. It is interesting to noté that Wilcox v. Saunders, supra, cited to sustain the rule. I have heretofore analyzed that decision; and *772 obviously it does not sustain the “breadth” of the rule now adopted. None of our subsequent decisions citing the Hopkins case give it that breadth.
The court says: “See, also, City of Beatrice v. Gage County, 130 Neb. 850 , 266 N. W. 777 .” That case decides that in a “civil action * * * legal and equitable principles, either or both, may be enforced according to the facts * * It relies on the Hopkins case. I fail to “see” any expression of a “breadth” of a rule in that case nor where it in anywise is supporting the position taken by the court.
The court relies for its sole authority as to the “breadth of this rule” upon a statement taken from Restatement, Judgments, § 66, p. 282. This refers to the impact of code provisions on the questions here. Before discussing section 66 I desire to quote from the same authority: “Where a plaintiff obtains an equitable decree against the defendant by which the defendant is directed to do an act other than to pay money, the plaintiff’s claim is not merged in the decree. * * * Since the original cause of action is not merged in a decree in favor of the plaintiff which is not a decree for the payment of money, the plaintiff is not thereby precluded by the doctrine of res judicata from maintaining an action at law or a suit in equity upon the original cause of action. * * * The rule that a judgment, whether in favor of the plaintiff or of the defendant, is conclusive in a subsequent action between the parties upon the issues ’’actually litigated in the first action is applicable not only to judgments for the payment'of money * * *, but also to judgments in actions other than for the payment of money.” Restatement, Judgments, § 46, pp. 178, 180. So the Restátement gives the court no comfort except as to the code provision.
The court quotes from the comment under section 66 of Restatement, Judgments. It emphasizes the last sentence, and evidently accepts it as controlling. I quote the sentence preceding, as it described precisely *773 the rule sustained by the wealth of our decisions. It is: “In some States, although a court of equity may award damages, there is not such a merger of legal and equitable remedies that the plaintiff is. compelled to seek damages in the equitable proceeding or be precluded from thereafter seeking damages in an action at law; in such States if the plaintiff brings a suit in equity to enjoin the continuance of a tort and does not seek damages which he has suffered from the tort, he is not precluded from thereafter maintaining an action at law to recover damages ”
Section 25-101, R. R. S. 1943, of our code .of civil procedure was adopted in 1867. See Laws 1867, § 1, p. 71. There were earlier provisions when, this state was a territory. So our code provision is now 92 years old. The parent code was adopted in New York over a century ago. It is a matter of common knowledge that many states have likewise adopted a similar code provision.
I call attention to the age of this provision and the fact that the court has been unable to find one adjudicated case that puts Nebraska and its code within the scope of the more “complete merger” rule which it now adopts. Nor has the court found one single text that does so. Nor has the court found an adjudicated case to support the rule it adopts.
I am aware that the court says “See, also, 2 Freeman on Judgments (5th Ed.), § 593, p. 1250.” I have obeyed the mandate and have seen that section. It makes no reference to code provisions. It consists of three paragraphs. The first deals with the rule of Gilbert v. Boak Fish Co., supra, which as I have pointed out we have heretofore refused to' follow. The second paragraph deals with the rule of Perdue v. Ward, supra, which as I have pointed out we followed in the Ledingham case. The third paragraph contains the language to which the court refers. It is: “Assuming that but a single cause of action is involved, whether the granting of equitable relief alone, in a case in *774 which legal; relief is not sought,. operates as bar to future, legal relief, would on principle seem to depend upon whether, a court of equity would be bound to grant such .relief if a proper case for it were made ” 2. Freeman on. Judgments, § 593, pp. 1251, 1252. That language assumes a “single cause of action” and a “proper case” being.made. That sentence is followed by. this: “If the matter be one resting in the discretion of the: court,, in view of the somewhat different modes of procedure followed in law and equity cases and the absence of a right to jury trial in the latter, it would seem that the failure of the plaintiff to present his claims, for .legal relief should not bar. a subsequent action therefor.. On.the other hand if the court would have' no alternative .but to grant or deny legal relief on the facts, presented, then it would appear to be the plaintiff’s duty to. present all of his grounds for relief, legal and equitable, in one action, on the- general principle that any grounds for relief not urged are barred.” 2 Freeman. on Judgments, § 593, p. 1252. I see no support for either the “breadth of this rule” or for a construction of the code provision in that citation. The rule from Freeman, upon which the court relies, then depends on whether or not a court has no discretion to grant or deny legal relief "on the facts presented.” I emphasize this because of the .concluding phrase in the quoted rúle “if a proper case for it were made.”’ But where a party, as here, neither pleads, claims, or attempts to prove damages, how can it be said that “a proper case” is made or the “facts presented.”
The quoted sections of Restatement relate to “equitable- claims or defenses.” It makes no reference to forms of action.
The court holds that because section 25-101, R. R. S. 1943, provides, that there shall hereafter be “one form of action” that: there has been “a complete merger of legal and equitable remedies'.”" ■ -. , •• u" •
*775 • But forms of action and legal and: equitable remedies are not synonymous. 1 C. J. S., Actions, § 39, p. .1084, states: “Where the codes have done away with the formal aspects of the common-law forms of action and substituted a single form of action for the enforcement of civil rights, the substantive phases of such actions remain untouched.”
In.-:1 C. J. S., Actions, § 1(d), p. 941, remedy is defined as follows: “ ‘Action’ is also distinguishable from ‘remedy,’ in that the term ‘remedy’ includes various means of enforcing rights or redressing injuries other than by action.”
In 1 Am. Jur., Actions, § 3, p. 405, it is stated: “Causes of action should be distinguished from, remedies. The cause- of action and the remedy sought are entirely different matters. The one precedes and, it is true, gives rise to the other, -but they are separate and distinct from each other and are governed by different rules and principles. The cause of action should be distinguished not only from the remedy but also from the relief, sought, which is no part of the cause of action.” The same authority, § 5, p; 407, states: ■ “It has been said; also that the term ‘action’ is not as broad and inclusive as the term ‘remedy,’ which does not necessarily imply an action, being the means employed to enforce a right or redress an injury, usually by action, but not necessarily so.”
If there is merit to the court’s position it then must depend for the “merger of legal and equitable remedies” on the language in section 25-101, R. R. S. 1943, which provides that the “distinctions between actions at law and,suits in equity * * * are abolished; * * Here the statute does not abolish or purport to abolish distinctions between remedies at law or in equity. It relates to distinctions between actions and suits.
■ I' now return to the decision in Wilcox v. Saunders, supra. ' The precise question of the effect of the code provision was there determined,' directly contrary to *776 the construction which the court now gives it. I point out that the verb “merge” now used by the court and the verb “blend” used by the court in the Wilcox case are synonymous.
As I have heretofore pointed out, Saunders sued Wilcox in equity for specific performance of a contract to convey land. He obtained a decree which became final. Saunders then sued Wilcox for damages for trespass committed upon the same premises involved in the former action. Saunders recovered a judgment in a jury trial. We affirmed. Wilcox contended that the former judgment was res judicata, relying on the code provision. Judge Gantt proposed to hold that the code provision was unconstitutional. He analyzed the act as follows: “First. The abolition of the distinction between actions at law and in equity. Second. The abolition of all forms of suits in equity as well as actions at law heretofore existing. Third. The substitution in their place of but one form of action, called a civil action; or in other words, the merger of the two jurisdictions and the blending of law and equity in one form of action, called a civil action.”
He proposed to hold: “* * * but an attempt to blend the two in respect to matters of substance and principle, it seems to me, would not only subvert the jurisdiction of the courts but would also be clearly repugnant to the constitution.”
But the court did not agree with him. It held: “In regard to the power of the legislature, under the constitution of 1867, to blend law and equity cases in one form of action by the abolition of the distinction formerly existing between them, and authorizing their joinder in the same petition, we entertain no doubt whatever. On the contrary we think the authority to do all that the code provides in this particular is clear. * * * We cannot give assent to the notion that it was the design of the constitution to deprive the legislature of the authority to control the action of these *777 courts in matters of mere practice, so long as no substantial right of a suitor was taken from him. Parenthetically I point out here that a substantial right is taken from the plaintiff.)
“The code does not profess to abrogate that distinction, which in the very nature of things must always exist between legal and equitable rights and remedies, nor to deprive any person of as complete redress, for every conceivable wrong done to him in his person or estate, as he formerly could have had. But it does require that, whatever the nature of the right to be enforced, or the wrong to be redressed may be, whether such as formerly would have been cognizable in either a court of chancery, or in a court of law, the simple form of a ‘civil action’ must be followed, in which a plain statement of the material facts constituting the cause of action, or the defense, must be set forth in concise language, and without repetition. Thus while the ancient forms of action are now abolished, all the various remedies known to the law still remain, and are administered through the medium of the single ‘civil action’ of the code, quite as certainly and much more speedily, than they were under the former practice.”
Quoting from Willard on Equity Jurisprudence, p. 43, the court held: “ ‘Relief may be obtained under the code in all cases where it could be granted before, whether at law or in equity. The subject of rights and wrongs remains unchanged. The remedy to enforce them, or to prevent their violation, or to obtain satisfaction for their violation, still exists, but under a different name. A civil action, nomen generalissimum, comprises within itself all the former actions both at law and in equity.’ ”
Here then is a direct holding that there has been no blending (merging) of the “remedy to enforce” legal or equitable rights. The court went on: “This is sufficient, we think, to show that, notwithstanding the two systems of procedure — the common law with its arbitrarily formal actions, of assumpsit, debt, detinue; tres *778 pass, trover, and the like, on the one hand — and the chancery with its next to interminable bills, having their nine distinct sub-divisions on the other, together with their almost endless paraphernalia, have been dispensed with in this state, and by the act of June 19th, 1867, at the first session of the legislature under our former constitution, the two systems united in one single form of action, — still the constitutional jurisdiction of the courts was not thereby in the least abridged, but in .complete harmony with both the language and the spirit ■of the code of civil procedure, yet remains as formerly, and extending to all rights and remedies of whatsoever nature, whether of chancery or common law cognizance under the former system. The mere forms, it is true, have departed, but the entire substance of both jurisdictions is still preserved to us ”
i Here again is a direct holding that “rights and remedies” remain “as formerly” — only “mere forms” have departed.
The above decision was followed in Hart v. Barnes, 24 Neb. 782 , 40 N. W. 322 , where this statement is found: “The code has simplified the forms of procedure, and provides but one form known as a civil action, .but has not changed the rights and remedies of the common law ” Contrary thereto the court now holds that legal and equitable “remedies” have been merged. The above decision was again followed in Hopkins v. Washington County, supra, from which the court quotes. So there can be no doubt that thé court in the Hopkins case was not departing from the rule of Wilcox v. Saunders, supra.
The above decision was again followed in State ex rel. Wright v. Barney, 133 Neb. 676 , 276 N. W. 676 , wherein we held: “ ‘The Code provides that there shall be but one form of action which shall be denominated a civil action. This provision has not changed the ■substantive rights of the parties. The substance of the common-law rules of legal'procedure, and the principles by which the different forms of actions were pre *779 viously governed, still remain as before. As it has been said, the abolition of the common-law names has not and cannot change the essential character of judicial remedies. And the common-law names are still used in Code states for convenience.’ ” The court now holds that the legal and equitable remedies have been changed and merged.
State ex rel. Wright v. Barney, supra, was quoted with approval in First Nat. Bank of Wayne v. Gross Real Estate Co., 162 Neb. 343 , 75 N. W. 2d 704 , in which we held: “By section 25-101, R. R. S. 1943, this distinction was abolished. The statute however did not abolish either the distinction between legal and equitáblé rights or'the methods necessary to assert or defend respectively' those rights.”
It was again cited with approval in Fuchs v. Parsons Constr. Co., 166 Neb. 188 , 88 N. W. 2d 648 .
So we have an unbroken line of decisions beginning with Wilcox v. Saunders, supra, decided in 1876, down to and including'the opinion in Fuchs "v. Parsons Constr. Co., supra, written by Judge Boslaugh and decided in 1958, all sustaining a rule contrary to that which the court now adopts.
I do not favor cutting down or "overruling all of the established precedents of this state construing and applying section 25-101, R. R. S. 1943. I submit that there has not’ been a “complete” or even a partial merger of legal and' equitable remedies as a result of the adoption of the code" provision.
In view of the number and'"definiteness of our holdings it would not seem necessary to cite texts on the matter. The'subject is discussed in 1 C. J. S., Actions, § 55, p. 1168.- I "venture to quote from, that authority: ‘•‘While there has been some uncertainty and diversity Of opinion, particularly in the " earlier case's, as to the exact nature and extent of the change thereby effected, it is well settled that it is not' so extensive as the broad terms of the provisions might imply. Without question *780 the mere formal distinctions have been abolished, but this seems to be practically all that has been effected, it being said that the distinction between law and equity is as naked and broad as ever.”
Under the latter text statement in 1 C. J., Actions, § 176, p. 1047, the case of Wilcox v. Saunders, supra, is cited.
In 1 Am. Jur., Actions, § 56, p. 448, the rule is stated as follows: “In short, the effect of constitutional and statutory provisions for one form of civil action, whether the cause of action is in its nature legal or equitable, is that while all relief is sought in the same way from the same tribunal, the distinction between law and equity is as naked and broad as ever, and the plaintiff, to be entitled to the equitable interposition of the court, must show a proper case for the interference of a court of chancery.”
Wilcox v. Saunders, supra, definitely decides that section 25-101, R.' R. S. 1943, did not create a complete “merger of legal and equitable remedies” — nor any in fact. It is directly contrary to the construction which the court now puts upon the code.
Wilcox v. Saunders, supra, now being in effect overruled, I submit the court is now directly confronted with the constitutional contention advanced by Judge Gantt. The court did not criticize that view in Wilcox v. Saunders, supra, but held it did not arise under the construction there given to section 25-101, R. R. S. 1943. As a result of the present decision the constitutional question is now here. The court ignores it.
All of our decisions mentioned in this feature of the dissent cover a period of over 80 years and 162 volumes of our reports. They are ignored by the court.
The rule''now adopted must necessarily operate In a situation where an action at law is had, followed by an attempt to' secure equitable relief; :
' Suppose in this cáse plaintiffs had known of their- damages to personal property. The amount of the dam *781 ages were ascertainable. Damages to .land from the trespass were known but the amount not ascertainable until such time as the full effect of the trespass had become a tangible result. Suppose then .they had brought an action at law to recover their ascertainable damages to personal property. They would have that right and on that issue have a right of trial by jury; However, not being able to presently ascertain the permanent damages to their land, except on a speculative basis, they withheld that issue. Likewise not knowing the full extent of the effect of the trespass, they withheld seeking an equity decree enjoining the trespass because they might not be presently able to establish a right to an injunction.
Under this decision, by suing for damages to personal property, they would of necessity be held to have forfeited their right to permanent damages to land and a right to enjoin a violation of their property rights. I cannot reconcile our decisions with such a result or deem it to. be a proper decision by a court administering justice according to law.
I now return to one sentence from Freeman on Judgments which the court suggests be seen. It is this: “If the matter be one resting in the discretion of the court, in view of the somewhat different modes of procedure followed in law and equity cases, and the absence of a right to jury trial in the latter, it would seem that the failure of the plaintiff to present his claim for legal relief should not bar a subsequent action therefor.” 2 Freeman on Judgments (5th Ed.), § 593, p. 1252.
I suggest the court should follow the test which it recommends.
It is axiomatic that a remedy at law involves the right of trial by jury. A remedy in equity does not involve that right. These distinctions have been recognized in our decisions without number. They have a constitutional base.
If this decision means what it says, it means that *782 these distinctions are now wiped out. We no longer have actions at law or suits in equity — they have been completely “merged” in a civil action..
Webster’s new Twentieth Century Dictionary (2d Ed.), p. 1127, defines merge as “to unite indistinguishably.” The rule now adopted makes no exceptions. The court makes no exceptions, and none could be made in the “breadth of this rule” that there has been a complete merger of legal and equitable remedies.
What about the constitutional right of trial by jury in what was formerly an action at law and is now indistinguishably merged in a civil action?
The court.' is now confronted with not only the constitutional question raised by Judge Gantt in Wilcox v. Saunders, supra, but also the constitutional right of trial by jury so vigorously asserted, and as I saw it unduly extended in scope by the court, in Gillespie v. Hynes, ante p. 49, 95 N. W. 2d 457 . There the court held that where a litigant invoked an equitable remedy (now merely a civil remedy), and a claim for a money judgment was advanced (formerly a law remedy, now merely a civil remedy), and the court denied equitable relief (now merely civil relief), a party could not, by remaining silent, waive his constitutional right of trial by jury as to the law issue (now merely a civil issue).
■It is inconceivable that the court intends by this decision to “unite indistinguishably” what were formerly remedies at 'law and remedies in equity. I challenge its constitutional power to do so. If language means anything by holding that there has been a “complete merger of legal and equitable remedies” in this state, the court now has accomplished that result.
Using the terms which up to now were commonplace, the court now compels a litigant to go into equity, and if equitable relief is granted, he must waive his constitutional right of trial by jury of the law issue; but if he desires to secure a jury trial of the law issue he must therebyi waive his equitable rights.