Galbreath v. Farrell , 1925 Tex. App. LEXIS 710 ( 1925 )

^* Writ of error refused November 18, 1925. The judgment now complained of is not erroneous if the judgment in the former suit operated to bar the recovery sought by appellants in this one. It did so operate if appellants' "cause of action" in that suit was the same as their "cause of action" in this one, for it is settled law (34 C.J. 743, 750, and authorities there cited) that:

"The judgment or decree of a court of competent jurisdiction upon the merits concludes the parties and privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action."

And it is also settled law in this state (Carpenter v. Landry,45 Tex. Civ. App. 506, 101 S.W. 277, and cases there cited):

"That a judgment sustaining a general demurrer is as final and conclusive as if rendered upon a hearing of the facts, and if such judgment is not appealed from [and set aside] the plaintiff is thereby precluded from recovery in another suit between the same parties upon the cause of action to which such demurrer has been sustained."

That the first suit in form was a statutory one of trespass to try title, while the last suit, in form, was to dissolve a partnership alleged to exist between appellants and appellee, and to compel an accounting of the partnership assets, is of no importance if the "grievance and wrong" complained of in the respective suits were, in legal effect, the same. Philipowski v. Spencer, 63 Tex. 604.

Were they the same? We think so. It appeared from the pleadings in the two suits, including appellants' trial amendment in the first one, set out in the statement above, that the grievance and wrong constituting the basis of the complaint in the respective suits was the repudiation by appellee of his agreement (as alleged) that he and appellants should jointly own the 132 acres of land when it was conveyed to him, and should act together in opening up and operating gravel pits thereon. In the first suit appellants sought a recovery of an undivided interest in the land, and damages measured by the rental value of the interest. In the last suit they also sought a recovery of an interest in the land, and damages, but measured by profits arising from the sale of gravel thereon, instead of by the rental value thereof.

The difference between the suits, it will be noted, did not lie in substantive facts alleged, but in conclusions drawn by appellants from those facts. In each of these suits the facts alleged, as appellants construed same, had the effect to vest title to an undivided interest in the land in them, but in the first suit appellants did not, and in the last one they did, construe those facts to have the further effect to create a partnership between them and appellee. If the conclusion last stated was warranted by the facts alleged in appellants' pleadings in the instant suit, we think it was warranted by the facts alleged in their pleadings in the first suit, for, as we understand same, there was no difference between the material facts alleged in the one suit and the material facts alleged in the other. If that is true, then the grievance and wrong complained of was the same in both suits, for it was the facts, and not the pleader's conclusions from the facts, that constituted the grievance and wrong complained of. "A party cannot," said the Supreme Court in Bank v. Wandelohr, 105 Tex. 226, 146 S.W. 1186, "escape the bar of a judgment against him by bringing a new suit on the same cause of action but in a different form of action or proceeding." And see, as pertinent to the question presented, Dixon v. Watson, 52 Tex. Civ. App. 412,115 S.W. 100; Fant v. Sullivan, 58 Tex. Civ. App. 392, 124 S.W. 691; Mallory v. Oil Co., 32 Tex. Civ. App. 294, 74 S.W. 953; Cunningham v. Cunningham (Tex.Civ.App.) 227 S.W. 221; Corrugated Culvert Co. v. Simpson Township, 51 Okla. 178, 151 P. 854, 4 A.L.R. 1170; Phelan v. Quinn,130 Cal. 374, 62 P. 623; 34 C.J. 797, 799, 813, and authorities there cited.

We think the conclusion of the trial court that the judgment in the first suit was a bar to the relief sought by appellants in this one was correct. Therefore the judgment complained of is affirmed.