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Gorman v. Rebound Controller Co.

Court of Appeals of Ohio
Dec 3, 1928
164 N.E. 771 (Ohio Ct. App. 1928)

Opinion

Decided December 3, 1928.

Res adjudicata — Parties, subject-matter and substantial allegations adjudicated in federal court.

Where allegations of statement of claim were substantially the same as allegations of petition previously filed in federal court to which demurrer was sustained, and parties as well as subject-matter were same, doctrine of res adjudicata held applicable.

ERROR: Court of Appeals for Cuyahoga county.

Mr. Gerald A. Doyle, for plaintiff in error.

Mr. T.J. Moffett, for defendant in error.


This cause is here on proceedings in error, and the parties stood in the court below as they appear here. An objection at the trial to any evidence being offered upon the doctrine of res adjudicata was sustained, so that the question here is whether there is prejudicial error in the ruling of the court in sustaining the motion objecting to the evidence. Motion for a new trial was made, and the same was overruled, and this judgment is also called into the question.

The question of res adjudicata appears by reason of the defense offered that on or about December 1, 1924, this same plaintiff, with the same defendant, commenced a proceeding in the United States court for the northern district of Ohio, eastern division, for damages for breach of an agreement, and there the prayer was for a judgment in the sum of $60,000. There was a demurrer filed and sustained on the ground that the petition did not state facts sufficient to constitute a cause of action.

In the United States court, in the action for damages at law, upon the sustaining of the demurrer on July 1, 1925, it appears that plaintiff failing and refusing to file a further pleading, and not asking to plead further, the court rendered judgment for the costs in favor of the defendant. The lower court in the instant case found that the doctrine of res adjudicata applies, after taking into consideration the judgment rendered in the case above noted in the United States court.

We find upon examination that the statement of claim filed in the lower court, and the allegations of the petition filed in the federal court, are substantially the same in character and averments, and, it appearing that the parties as well as the subject-matter are the same, there is no question in our minds that the doctrine of res adjudicata applies.

It is conclusive that, had the plaintiff in the federal action proceeded to trial, the cause of action in the court below would necessarily have been included. This being so, it is clear that the doctrine of res adjudicata operates.

The sustaining of the demurrer in the federal. court results in a status as to the allegations of the petition that would exist had the demurrer been overruled, instead of sustained, and the case had proceeded to trial, and from an examination of those allegations, together with the examination of the record in the case at bar, there is no question in our minds that the parties being the same, the subject-matter being the same, and the matter having already been adjudicated by the federal court, the doctrine of res adjudicata impregnated the hearing in the court below. Consequently the court was correct in its ruling.

It is unnecessary to quote a mass of authorities, but we cite Hull v. Norris, Exr., 14 Ohio App. 108, affirmed 100 Ohio St. 521, 127 N.E. 924; Covington Cincinnati Bridge Co. v. Sargent, 27 Ohio St. 233.

Holding these views, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

VICKERY and LEVINE, JJ., concur.


Summaries of

Gorman v. Rebound Controller Co.

Court of Appeals of Ohio
Dec 3, 1928
164 N.E. 771 (Ohio Ct. App. 1928)
Case details for

Gorman v. Rebound Controller Co.

Case Details

Full title:GORMAN v. THE STAR REBOUND CONTROLLER CO

Court:Court of Appeals of Ohio

Date published: Dec 3, 1928

Citations

164 N.E. 771 (Ohio Ct. App. 1928)
164 N.E. 771