Driscoll v. Damp , 16 Wis. 106 ( 1862 )

By the Court,

Cole J.

It appears to us the circuit court erred, in excluding the evidence offered to show the identity of the matter litigated in the former suit with the one in issue here. The appellant had set up in his answer, that the identical claim herein, was in issue and adjudged in a former suit and relied on the estoppel. He offered to show on the trial, by the minutes of testimony taken by the justice in the action of Simon P. Damp and Andrew J. Damp against the respondent, and by the justice before whom that action was tried, that the identical claim herein was in issue and was adjudged in said action; that the plaintiffs recovered in that action as co-partners ; that the claim in this suit was for money had by one of the partners on a partnership account; and that it was merged in that judgment. -This is the substance of the offer, and we fail to perceive any valid ground for rejecting the evidence. In disposing of the case, we must, of course, assume that the appellant could make good this offer. The question is, was not the evidence admissible and competent to prove the issue made by the pleadings? We are clearly of the opinion that it was. The offer is clear, unambiguous and precise ; to prove, both by the justice and by the minutes of testimony taken by him on the former trial, that the identical claim sued on here had been in issue in another suit, and had passed into judgment. What valid objection could there be to the admission of this evidence. It is said that this offer is uncertain. But how so ? Can any one be in doubt as to what the appellant proposed to prove ? I think it would be difficult to make an offer,more precise and intelligible. It is insisted that the offer was objectionable because it did not appear from it whether the facts assumed, were to be proved by the minutes of the justice or by'his own .testimony ore tenus. The offer was, to prove by the minutes and the justice, certain matters. The offer is not in the alternative. The offer is not like the one commented upon in Daniels vs. Patterson, 3 Coms., 48, which the court say is ambiguous and fairly open to two constructions. The offer here is “in such plain and unequivocal terms as to leave no room for debate about what was intended ” to be proved.

It is further objected that the minutes of the justice were not admissible. Concede, for the purpose of the argument, that this was so; still what objection was there to establishing the fact by the parol testimony of the justice ? Whenever a question is made respecting the identity of the matters litigated in the first suit, parol evidence is admissible to show what transpired on the former trial, and thus explain the record, Parker vs. Thompson, 3 Pick., 429; Cist vs Zeigler, 16 S. & R., 282; Wood vs. Jackson, 8 Wend., 9; Gardner vs. Buckbee, 3 Cowen, 120; Burt vs. Stemburg, 4, id., 559. See also section 97, chap. 139, R. S. We do not suppose it would vitiate the offer because the appellant might propose incompetent, as well as competent evidence to prove the issue. Tbe testimony was divisible, and the good should have been accepted.

The principle is well settled, that if the claim sued upon in this action was litigated in a former suit, the matter cannot again be drawn into controversy. This principle is too elementary to require the citation of authorities to support it. There is nothing in the case of Woodward vs. Hill, 6, Wis., 143, which the counsel for the respondent relied upon, to impeach or question the integrity and justice of this well established doctrine.

There can be no doubt that the pleadings in the case of Simon P. and Andrew J. Damp would admit proof of the payment of the money sued for in this action; and if that matter was really in issue in that suit, and adjudicated, it is contrary to all the authorities to permit the respondent to again contest the same thing over. There would be no end to litigation if such a doctrine should prevail.

For the reasons above given, the judgment of the circuit court must be reversed, and a new trial ordered.