« AnteriorContinuar »
the ground that the remedy he seeks is not a proper one upon the facta
charged, estop him from maintaining another and different action which
those facts are adequate to support. Kleinschmidt v. Binzel, 604.
RES JUDICATA—JUDGMENT ON THE MERITS. - If the first suit was dis-
posed of for defects in the pleadings or parties, or a misconception of the
form of the proceeding, or a want of jurisdiction, or on any ground
which did not go to the merits of the action, the judgment will prove
no bar in another suit. Kleinschmidt v. Binzel, 604.
7. RES JUDICATA-BURDEN OF Proof.-IT Most CLEARLY APPEAR from the
record in a former cause, or by proof by competent evidence consistent
therewith, that the matter as to which the rule of res judicata is in.
voked as a bar was, in fact, necessarily adjudicated in the former ao
tion. If there be any uncertainty on this head in the record the whole
subject matter of the action will be at large and open to new contea.
tions, unless such uncertainty is removed by extrinsic evidence showing
the precise point involved and determined. Kleinschmidt v. Binzel, 604.
8. RES JUDICATA—UNCERTAIN GROUNDS OF JUDGMENT. — A JUDGMENT FOR
THE DEFENDANT UPON A DEMURRER SPECIFYING that the complaint
does not state facts sufficient to constitute a cause of action, and that
there is a misjoinder of causes of action and of parties, merely means
that the court finds some one of these causes of demurrer is good, and
not that all are found good; and, in the absence of evidence that the
judgment was upon the merits, it cannot constitute a bar to a gubse.
quent action based upon the saine facts. Kleinschmidi v. Binzel, 604.
8. A COLLUSIVE JUDGMENT IS OPEN TO ATTACK whenever it may come into
conflict with the rights or the interests of third persons, as fraud is
not a thing which can stand even when robed in a judgmentAtlas
Nat Bank v. More, 274.
10. CONCLUSIVENESS.-A judgment, so long as it stands, imports absolute
verity as to every proposition of law and fact essential to its existence
against all parties to it. Shultz v. Shultz, 320.
II. IF A JUDGMENT OR DECREE IS PROCURED THROUGH THE FRAUD or
EITHER OF THE PARTIES OR BY COLLUSION OF Both, for the purpose of
defrauding some third person, he may escape from the injury thus at.
tempted by showing, even in a collateral proceeding, the fraud or col.
lusion by which the judgment or decree was obtained. A judgment will
not be upheld against the creditors of the judgment debtor if it is not
founded on an actual debt or other legal liability due or enforceable at
the time of its entry. A third party whose rights are affected may
prove that there was no debt from the judgment debtor. Allas Nat
Bank v. More, 274.
12. Rigut to RECOVER DAMAGES FOR OBTAINING.—So long as a judgment
obtained by fraud stands, a party thereto cannot maintain an action
to recover damages for so obtaining it, as a recovery in such action
would operate as an impeachment of the first judgment. Shultz r.
13. Action TO IMPEACH. -A party to a judgment obtained by fraud can
avail himself of that fraud only in a direct proceeding to vacate and
set aside the judgment, and not in an action to recover damages on the
ground that such judgment was fraudulently obtained. Shulta ,
14. IMPEACHMENT OF, POR WANT OF JURISDICTION OF SUBJEOT MATTER-
ESTOPPEL. A judgment may always be impeached for want of juris
diction of the subject matter appearing upon the face of the judgment.
Hence, a judgment foreclosing a mortgage of lands particularly described
by reference to the section, township, and range of the government
survey, and which judginent further erroneously recites that such lands
are situated in the county in which the foreclosure action was brought
does not estop the judgment debtor, when the judgment is sought to be
enforced, from asserting in an injunction suit to restrain a sale that the
mortgaged premises are situated in another county, and that the court
was without jurisdiction to render such judgment. Rogers v. Cady,
16. OPENING AND SETTING ASIDE — APPEARANCE. A judgment regular
on its face, without evidence of defense to it on the merits, cannot
be opened or set aside on the ground that the appearance for the de.
fendants was unauthorized, if that fact is not admitted or proved.
Swartz v. Morgan, 786.
16. JUDGMENTS ON VOID PROCESS. — Ajudgment by default, based on the ro.
turn of an officer made outside the state, and shown to be invalid ander
the laws of that state, is null and void. Russell v. Grant, 563.
17. SETTING ASIDE–Want or JURISDICTION.--A judgment cannot be set
aside for want of jurisdiction of the person of the defendant when the
findings upon which it is based show that it was rendered upon a valid
record of service made in good faith. Thompson v. McCorkle, 334.
18. Equrry Will Set Aside OR ANNUL FOR FRAUD, WHEN.—It is only
for fraud extrinsic or collateral to the matter in issue, and tried in an
action, and not ior a fraud in an action upon which the judgment was
rendered, that a court of equity will set aside or annul a judgment for
fraud. This rule is based upon the principle that there must be an end
of litigation. Fealey v. Fealey, 111.
19. VACATING FOR EXCUSABLE NEGLECT. — The defendant is entitled to
have a judgment vacated on motion on the ground that it was re-
covered against her through her excusable neglect, when it appears
that she was vigilant from her first knowledge of the action, that she
employed an attorney to defend it in the state wherein it was pending
and of wbich she was a nonresident; that she forwarded to him a
verified answer; and that he refused to tile it because she did not
accept a compromise negotiated by him and refused to open letters
addressed to him and forwarded by her and her counsel from her place
of residence. She cannot be regarded as inexcusably negligent, though
she received a letter from the attorney stating that unless she accepted
the terms of the compromise he would have nothing more to do with
the case and would not file the answer, when she afterward wrote to
him explaiving that the compromise had never been authorized by her
and requesting him to file the answer. She could not anticipate that
he would refuse to open and read her letter. Simpkins v. Simpkins,
20. VACATING FOR UNAVOIDABLE CASUALTY.-The serious sickness of an
attorney's wife is an unavoidable casualty, excusing his ponattendance
at court at the time his client's case is set for trial, and is ground for
setting aside a judgment rendered at that time dismissing the action
for want of prosecution, if the client has a meritorious cause of action,
and has not been guilty of laches. Leaming v. McMillan, 26.
A. ActionS UPON.-A party who has recovered a joint judgment upon a
joint and several claim may thereafter maintain an action upon the
judgment against either of the judgment debton Olson v. Veasily
22 JUDGMENTS OF SISTER STATES-ACTIONS UPON-INTEREST.-In an actios
upon a judgment rendered in another state interest may be recorered
thereon, although the judgment sued on does not of itself purport to
bear interest, and there is no proof of a statute of such state authoris-
ing the collection of interest on judgments rendered therein. Olson V.
23. JUDGMENT OF ANOTHER STATE_How PROVED.—The judgment of a court
of another state, if authenticated as provided by the act of Congress,
must be received in evidence; but it is admissible here if authenticated
according to the statute of this state, though such authentication may
not be as full as that required by the act of Congress. In re Ellis' Et
* EFFECT OF DELAY IN ENFORCINO.-One who does not attempt to en-
force a judgmeut until more than three years have elapsed after its
entry ought not to complain if, in the mean time, he has lost any rights
by reason of his inaction. Rogers v. Cady, 101,
Seo EXECUTORS AND ADMINISTRATORS, 9-11; JUSTICES OF THE PEACR; MAR
BIAGE AND DIVORCE, 3–6; PARTNERSHIP, 9; PROCESS
See EVIDENCE, 4-6.
1. VALIDITY OF AGREEMENT TO MAKE JOINT BID. — An agreement to
make a joint bid at a judicial sale, although it may indirectly bare
the effect of keeping others from bidding, is not illegal unless it is
intended to avoid competition. Hence, in the absence of any franda-
lent or illegal intent or purpose, an agreement whereby one of several
persons is authorized to bid for their common benefit on property
about to be sold at sheriff's sale is not invalid. Gulick v. Webb, 720.
2 COMBINATION TO MAKE JOINT BID. – A combination between several
persons holding liens against real property sold at sheriff's sale, no one
of whom is able financially to bid individually at such sale, whereby
one of such persons, by attorney, bids in the property for himself and
the other lienholders, is not forbidden or contrary to law, and does not
vitiate the sale. Gulick v. Webb, 720.
& SALE TO COMBINED BIDDERS WILL BE UPHELD, WHEN.—A judicial sale
to an association of persons formed for an honest purpose and with an
honest intent, not with a view of stifling competition as to bids, but to
enable them to compete where, without combining, they could not do
80, will be upheld and completed. Gulick v. Webb, 720.
See EXECUTORS AND ADMINISTRATORS, 4.
1. PRACTICE. —A COURT WILL RECOGNIZE WANT OF JURISDICTION open it
no objection is made, for, if the court is without jurisdiction, it is porr.
orless to act in the case. State v. Van Beek, 397.
& JURISDICTION OF INFERIOR Courts—CONCLUSIVENESS OF RECORD-Evi-
DENCE TO IMPEACH.—The record of a court of inferior or limited juris-
diction is given the same verity as that accorded the record of a court
of general jurisdiction, only after it is shown that the inferior court
had jurisiliction of the subject matters and the parties tried before it.
If jurisdiction is denied, no step can be taken until jurisdiction is
shown. If the recitals in the record show jurisdiction and their cor-
rectness is admitted, that is sufficient; otherwise proof outside the
record must be adduced to establish jurisdiction. Smith v. Clausmeier,
Seo ADMIRALTY; INSOLVENCY; JUDGMENTS, 14, 17; JUSTICES OF THE PRAOL
See New TRIALS, 1, 2.
JUSTICES OF THE PEACE.
1. JUDGMENT. — The statute requiring a justice of the peace to "forthwith
render judgment,” simply means that it shall be rendered within a
reasonable time after the verdict is received, in view of the circum.
stances surrounding the particular case. Sorenson v. Swensen, 472.
2 JUDGMENT—REASONABLE TIME. - A judgment rendered by a justice of
the peace on Monday, upon a verdict returned on the preceding Satur.
day, is within a reasonable time after verdict if he was then busy with
other cases. Sorenson v. Swensen, 472.
& JURISDICTION OF INFERIOR COURTS IN CRIMINAL CASES. — To give a justice
of the peace jurisdiction over the person of one charged with a viola-
tion of criminal law the first step necessary is the filing of an affidavit
naming the offense and the person charged with its commission, and
without such affidavit there is no jurisdiction, and all the proceedings
are void. An affidavit filed afterward comes too late, and cannot be
made to relate back so as to confer jurisdiction at the time of the trial.
Smith v. Clausmeier, 311.
See HABEAS CORPUS.
See CONTRACTS, 4; JUDGMENTS, 24; LIS PENDENS, 9.
LANDLORD AND TENANT.
1. IMPROVEMENTS.–A tenant cannot recover for improvements erected by
him on the leased premises, without the consent and against the pro-
test of the landlord. Jones v. Hoaril, 17.
2 Covenants—Rights OF TENANT—EVICTION. -Under a sublease of a
cigar and news room in a hotel, with the appurtenances thereto, and
the right of entrance to and from the hotel rooms, together with the
entire cigar privilege of the hotel, the tenant is entitled to have the
hotel kept open without reference to an implied covenant for quiet
enjoyinent. The abandonment of the lower floor of the hotel and
the use of a portion only of the upper floors for sleeping-rooms in con.
nection with a hotel across the street constitutes an eviction of such
tenant. Coulter v. Norton, 458.
& Assignment or LEASE-EvictioN-LIABILITY OF ASSIGNEE.-An assig.
nee of a lease, to whom a subtenant attorns, is liable for the eviction of
such tenant, accomplished by such assignee's acts. Coulter v. Norton, 458.
Eviction.-MEASURE OF DAMAGES for the eviction of a tenant is the
actual value of the unexpired term, less the rent reserved. Coulter v.
See SURETYSHIP, 6, 7.
sco ALTERATION OF INSTRUMENTS; CONTRACTS, B; CORPORATIONS, 12; Lan
LORD AND TENANT,
CONSTITUTIONAL LAW - Girts, PROHIBITION OF — PREVENTS LEGISLATURA
FROM CREATING LIABILITY FOR NEGLIGENCE – Under a constita.
tional provision forbidding the legislature from making any gift of
public money, it has no power to create a liability against the state for
any past act of negligence on the part of its officers. Chapman v. State,
See ADMIRALTY; MECHANIC'S LIEN; PARTNERSHIP, 8; SURETYSHIP,
LIMITATIONS OF ACTIONS.
1. STATUTE OT LIMITATIONS DOES NOT RUN IN FAVOR OF A PORCHASER Per.
DKNTE LITE. He will not be regarded as holding adversely to the par.
ties to a suit during the litigation. Norris v. Ile, 233.
2 Not UNTIL THE PURCHASER AT A FORECLOSURE SALE IS ENTITLED TO A
Deed can the mortgagor or his grantee assert an adverse possession.
Norris v. lle, 233.
& DOWER.—The statute of limitations does not begin to ran against the
inchoate dower interest of the wife in lands until the death of her
husband. Thompson v. McCorkle, 334,
4. CAUSE OF ACTION FOR MISTAKE IN AN ABSTRACT WHEN ARISE-
If a searcher of records employed to make a correct abstract of publie
records affecting the title to real property, through his negligence
or mistake omits an instrument from such abstract, a cause of action
against him is at once created, and the statute of limitations com-
mences to run in his favor, and cannot be made to comience at a later
day by proving that the mistake was not discovered until such later
day. That the party for whom it was made, subsequently acting in
reliance on its correctness, paid out money which he would not have
paid had it been correct does not constitute any new cause of action.
Russell v. Polk County Abstract Co., 381.
8. Tort, ACTION FOR, WHAT IS NOT.—The fact that a person negligently
performed a duty which he imposed upon himself by contract cannot
entitle another contracting party to sustain an action of tort for such
negligence, and thereiore any action commenced to recover damages
for the failure to perform such duty is an action upon a contract, and
the statute of limitations applicable thereto is not that designating the
time within which actions may be brought for torts, but is that declar
ing the time within which actions may be prosecuted upon contracta
Russell v. Polk County Abstract Co., 381.
& DISABILITY-REMOVAL OF.—The statute of limitations begins to run as to
persons under legal disability, when the action accrues, but, if it has
fully run before the disability expires, an action may be brought within
the time limited by statute after the disability is removed. The phrase
“legal disability" includes infancy. King v. Carmichael, 303.