Pfennig v. Griffith , 29 Wis. 618 ( 1872 )

ETON, J.

Tbe only question to be determined is, whether the adjudication in the action first tried is necessarily conclusive of tbe right of tbe plaintiffs to tbe “ Green logs ” in controversy in this action; or whether it was competent for the defendant to show that such adjudication did not settle the right of tbe plaintiff thereto.

Tbe general rule of law applicable to this question, and which has been approved and acted upon in numerous cases in the courts of the several states, is thus stated by Lord Chief Justice De Geet (afterwards Lord WalsiNGHAM), in.tbe Duchess of Kingston’s Case, 20 Howell’s State Trials, 538 : “ From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: first, that the judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose. But neither tbe judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction; nor of any matter incidentally cognizable; nor of any matter to be inferred by argument from tbe judgment.” It is only where the point in issue has been determined, that the judgment is a bar. 1 Greenl. Ev., § 529. When a former judgment is shown by way of bar, whether by pleading or in evidence, it is competent for the plaintiff (in this case the defendant) to reply, that it did not relate to tbe same property or transaction in controversy in the action to which it is set up in bar; and the question of identity thus raised is to be determined by the jury upon the evidence adduced. And though tbe complaint in tbe former suit may be broad enough to include tbe subject matter of tbe second action, yet if, upon tbe whole record, it remains doubtful whether tbe same subject matter was actually passed upon, parol evidence is admissible to show tbe truth. If tbe pleadings present several distinct propositions, and tbe evidence may be referred to either or all with tbe same propriety, tbe judgment is not conclusive, but only prima facie evidence upon any one of tbe propositions, and evidence aliunde is admissible to rebut it. 1 id., § 532, and cases there cited.

Tbe case of Burlen v. Shannon, 14 Gray, 433, is an illustration of tbe rule last stated. Tbe action was for' tbe board of tbe defendant’s wife. It was essential to a recovery therein that tbe plaintiff prove the fact that tbe wife was absent from tbe defendant’s bouse by reason of his cruelty to her. To prove such fact, tbe plaintiff gave in evidence a judgment in bis favor against tbe defendant, in a similar action, for tbe board of tbe wife during a previous period. It was shown on tbe last trial, by parol evidence, that on tbe former trial tbe plaintiff introduced evidence, both that tbe wife was obliged to leave her home by reason of her husband’s cruelty to her, and that she lived apart from him with bis consent. It was held that tbe proceedings and judgment in tbe former action were conclusive evidence that she was lawfully living apart from him, but were not conclusive that tbe cause of separation was bis cruelty, unless tbe jury were satisfied by parol evidence that bis cruelty was tbe ground of tbe former verdict. Chief Justice Shaw, in delivering tbe opinion of tbe court sustaining tbe rulings of the judge who presided at tbe trial, says: “ Tbe parol evidence was rightly admitted to ascertain what questions were in fact tried and submitted to tbe jury. Tbe evidence showed that two such questions were submitted; that, if either of two things was true, they would return a verdict for tbe plaintiff. A verdict on that direction for tbe plaintiff proved nothing more than that the jury found one of tbe propositions true, but without finding -which. It was not, therefore, true that they found absence by reason of cruelty. It was simply evidence, to be weighed with other evidence, which being parol evidence, its weight was properly left to the jury. The judge could not decide upon the effect of the evidence as matter of law; and therefore the only course was to leave it to the jury to consider the evidence, and ascertain the facts, and apply the law accordingly.”

In Doty v. Brown, 4 N. Y., 71, following the case of Gardner v. Buckbee, 3 Cow., 120 (which is a leading case upon this subject), Ruggles, J. states the general rule thus: “ But the settled principle of law appears to be, that the same point or question, when once litigated and settled by a verdict and judgment thereon, shall not again be contested in any subsequent controversy between the same parties depending on that point or question.”

The counsel for the plaintiff has cited numerous cases, among which are those above referred to, bearing upon the question under consideration. These have been carefully examined, and it is believed that they are all in entire harmony with the principles hereinbefore stated. It only remains to apply those principles to this case.

In the action first tried the plaintiffs claimed to be the owners of all the “ Green logs ” which were got out in the winter of 1867-8. The defendant claimed to own all of the same logs which had been got out before Eebruary 18th, 1868, and did not controvert the plaintiff’s title to those which were got out afterwards. Whether the logs in controversy in that action were cut before or after that date, and whether the plaintiffs or the defendant owned those cut before that time, were the questions litigated upon that trial. The verdict therein can be sustained on either of two theories; first, that the plaintiffs were the owners of all the “ Green logs” which were cut in the winter of 1867-8; or second, that they only owned such as were got out after Eebruary 18th. If the jury found the first proposition to be true, and based their verdict upon it, it seems quite clear tbat sucb adjudication is binding and conclusive upon tbe parties in respect to tbe “ Green logs ” in controversy in this action. But if tbe jury only found tbat tbe logs in controversy, being 46,223 feet, were cut after February 18tb, and did not determine tbe ownership of those cut before tbat date, it seems equally clear tbat tbe first adjudication will not prevent tbe defendant from asserting bis title to tbe logs in controversy here.

Both theories, as already stated, were litigated upon tbe trial and tbe verdict is conclusive evidence tbat one or tbe other of them prevailed, but it is not conclusive as to which is tbe true one. In this respect tbe case is like tbat of Burlen v. Shannon, supra. It is not sufficient tbat the question of tbe ownership of the logs got out before tbe 18th of February was litigated upon tbe first trial, but it must also appear tbat tbe question was determined, before tbe parties can be held bound by sucb former adjudication. Whether tbe question was so determined does not appear from tbe record, and testimony aliunde is admissible to show what was or what was not determined in tbat action. Hence, although tbe defendant did not directly propose to prove tbe grounds upon which tbe former verdict was rendered, yet tbe testimony which was offered by him and rejected, or some of it at least, tended in that direction, and should have .been admitted. Tbe excluding of sucb testimony is error.

By the Court. — Tbe judgment of tbe circuit court is reversed, and a new trial ordered.