The Meeker herald., 1888-06-02
MEEKER, COLO. SATURDAY, JUNE =, lsss.

ayerred that this COD By It's opinion
and Judgment of Atk ~, lss7, pro-
nounced in that case. ~ the said AS
sessment to be valid, VI that the in
junction proceedings ph hot lie main
tanned, which forme4 'nlpdica,ion is
alleged To be u comp.eS BAR To the pres
ent action. This aW stands un-
traverscd, aud the fact .lhiciorc, OF Il
former adjudication u Tbs same sub
iect matter between Il sAme parties Is
decisive not only OF nrpeal, but OF
this action. II appearefs from the record
that there was full q complete ad-
juiication in The or nli suit OF the
validity OF these taxes nd that ;he au-
thority OF the appsllan ,S Treasurer of
Routt county. to enf0(D their co!lec-
tion WAS therein sustA Aned. there WAS.
therefore, no warrant law Tor grant
ing this second inJun$on 10 restrain
him from the pcrforna1 -. thai duty.
The point ~ stgn's9p ~ istestasposs
by counsel for appellee. ,lat the sub
ject matter III the otisinalinlunctlon
proceedings. and the judgment OF this
couf, therein, could not ts legally in-
,.rposed as an cstoppei 10 this second
suit, for tile reason that tis same con-
s,i,u,cd new matter. and Was therefore
inadmlssible under the Tuies of clan
cery practice. is without merit and un'
tennblc. The authorities cited IN sup
port OF the proposition announce nu
such doctrine: they refer rather To eases
wLcr. the new matter Is 10; responsive
,o the allegations of the bill, and i0 u-w
matter which Is alleged b. Way OF con.
f-ssion and avoidance; ~ where tie al
legged equities are admitted, but other
facts aI. .n,erposcd by way Of defense
thereto.
The plea Of rcs indicain, ili"l herein,
is responsive la III. complaint; u con
ced.s no equities whatever In the allie
cations o! the complaint. but ;, mn un-
.quiyocal denial of nil III. propositions
upon which the complainant equities
rest. In ciicc, II IN u denial ui the
equities set M both In this and IN the
former complaint, and II alleges that
the Who'll, sgbj-c,.maiter thereof WAS
adjuiica,ci In H.. former action,
wherein II was finally determined that
the complainant, was not entitled Ia
equitable OF inlunruyr relief. This
plea, unIEas.Ts-i. leaves nothing for
the eour; to Try. III. cqni;irs 1I the
complain, aTr not onl, d-nir,i, but dis
proved. leaving nothing for the iniuuc.
ton TO rest upon.
High on fnlunr,iuns. title. bis.
solution: Secs. itGI 10 1876. anL See.
1851. ard author.;i-, cited.
We have adycr,ca 10 Ito iar, ,iia; the
pt.s.n, complaint contains a,-imcnir
of equities no, stated In the original
NsFd h,.a;t. ,arsrin. aIss .i..,, N, N. ..hir,i
di,ional equities rx,sirs! 3. the umu OF
the iiling oI tho former complaint. and
thai there /, no ay-fm~nl that th.y
wrr, then unknown la tic complainant,
|, Is well settled that the Asfnr subject
matter canuO; h- r-'iiii.si~i ana TO-
AAAAtf Assas
III. manner oi stating the csus- of the
action. II. 10y emitting "a ppi,inn Of the
grounds oi action from The frs, com
plaini, AMI u portion "f 'hc facts from
the second. an csioprci could L.
avoided. the r-sul, would L. attained,
not upon IL. legal ground that the ,iIb.
icci matter o: the SECOND sui; had n1,
been adiudica;c,i in the former suit. bu,
through the ingenuity Of counsel in -
drafting the plcadings ~ 10 avoid tie
legal effect Of the former adjudication.
Causes Of action might bc thus split
up and prosecuted In fragments, part at
one time aud part ut another time. II
such practice We're permissible. and the
doctrine 81 res iuiicaia would not only
b. nullIiici. but litigation become end.
less.
City of Denver VI. I.ohcust.in. 2
Colo. .is. Stark W. stark. supra,
is1. High OF injunr,ions. Sec. 20.
The court below cr.ti, therefore, In
granting the second injunction. This
error may readily have occurred under
the circumstances. the application bc-
ing made Ia diffcrcni court. Hut when
i;s attention was called % .hc prior pro
ccedings Including the judgment of
this court upon the hearing Of the mo-
ton TO dissolvel by tie answer of the
appellant and the proofs offered, the in
junction should have been promptly dis
solved. The proceedings had In the
original suit did no, constitute new
matter, In the legal sense Of that term
as applicable 10 proceedings Of this ma
,urc, and were admissible under Chapter
! of the Code OF Civil Procedure, title
lnjunc,ions. AS well rs under the rules
Of chanccry practice, and gave the
judge in vacation ample authority Ia
dispose Of the application Us cHectually
in accordance with ihc principles of
law as he might have done in term.
An the equities now claimed existed
at the institution Of tile original suit,
and the County Treasurer Was only pro.
ceeding TO perform the same d.ty, from
the execution of which he hud been pre-
yiously restrained. when ihc bill was
filed in the present ease. There was
no new cause OF action. and the appellee
was not entitled to bring new suit for
the same purpose involved In the for
mcr proceeding.
City OF Denver vs.. Lobenstein.
e ,....