
    Gladney v. Gladney et al.
      
    
    [106 So. 768.
    No. 25304.]
    (Division B.
    Dec. 14, 1925.
    Suggestion of Error Overruled Jan. 25, 1926.)
    Judgment. Determination of questions incidental to that presented by pleadings not res judicata.
    
    Determination, in action for rent, of questions incidental to that of whether any rent was due, as value of improvements and length of lease by an accounting, is not res judicata thereof, as only questions presented by pleading can be adjudicated.
    
      Appeal from chancery court, of Monroe county.
    Hon. Allen Cox, Chancellor.
    Suit between Georgia Gladney and Lewis Gladney and others. From an adverse decree, the former appeals.
    Per Curiam.
    Affirmed.
    On Suggestion oe Error.
    
      Wiley II. Clifton, for appellant.
    The general rule is that a judgment or decree is conclusive between parties and privies. It is conclusive both of the Taw and facts. It is not only conclusive of the rights of the parties in the particular suit, but of every fact which the judgment or decree affirms positively, or by necessary implication. St-ewart v. Stebbens, 30 Miss. 66; Laird v. Keirn, 52 Miss. 341; Hartman v. Pickering, 84 Miss. 427-31; Dean v. Sup’v-, 135 Miss. 280'.
    If Lewis Gladney did not make his demand in the action at law co-extensive with his rights, he cannot now be relieved in equity for what he omitted, as the law court had full jurisdiction not only of all that was proved, but of all that might have been established. The- chancellor in the instant case held-that the lease contract needed no reformation and admitted parol testimony to prove the value or cost of the outbuildings. Gains v. Kennedy, 53 Miss. 390; Gillum v. 'Case, 71 Miss. 855 and cases cited; Vinson v. Mortgage Co., 116 Miss. 63; Home Ins. Co. v. Tate Mercantile Co117 Miss. 7601.
    The contention of appellees will be that the only issue in the suit at law was “whether Lewis Gladney owed any rent or not, ’ ’ and the circuit judge had no jurisdiction or power to say “when the lease contract would expire.” In order to determine whether the tenant owed any rent, it was necessary to have aii accounting between the parties as to the value or cost of improvements and the reasonable rental value of the land for the years 1922 and 1923. Otherwise, how could they tell whether any rent was owed by Lewis or not? The lease contract did not fix the value of either. Then all the evidence that went to prove or tended to prove the cost of the improvements and the reasonable rental value of the land for 1922 and 1923 were material facts involved in the issue. Our court has held in more than one case that one way to tell whether the matter is res judicata is to see whether the same or s-ame character of testimony used in the first suit was necessary to maintain the second suit. The pleadings in the two suits show that the only way the accounting could be had was to inquire into the value of the improvements and rents deducting the lesser from the larger sum.
    O'n the findings of the facts involved in the issue and necessary to support it, the chancellor’s opinion covers the same matter that the circuit judge’s opinion decides; they merely differ as to the cost of the improvements and the reasonable yearly rental of the land for 1924 and 1925. And the chancellor held that it was not necessary to reform the lease contract in order to recover for the cost of the outbuilding’s. The only finding’s of the circuit court that the chancellor permitted to stand was the annual rent of one hundred dollars for 1922 and 19-23; when the proof as to the rent introduced before him covered the full four years. If this was because he considered himself bound by the circuit court judgment, why not equally bound by the circuit court’s finding' that the cost of the dwelling- house was two hundred dollars! I submit that the matter of rent for 1924 and 1925 was not left open for the reason that the improvements were to be paid for with the rent from, the land for the term necessary to reimburse Lewis Gladney. And when the circuit court fixed one hundred dollars- as a reasonable annual rental and this sum liquidated the improvements, then he was bound to pay the same yearly rental if he held over.
    
      Leftwich & Tubby.ior appellees.
    Appellant complains that the chancery court reopened “the accounting' over the improvements and rents between these parties when the circuit court in the action of replevin brought by Lewis Gladney v. Georgia Gladney, involving* those same improvements and rents, had gone into this accounting, etc.” Now this question arises: Are the proceedings in the circuit court of Monroe county res adjudicata?
    
    The clean, square-cut issue between the parties was whether or not the bale of cotton in question was wrongfully seized. True, it is if Lewis Gladney owed no rent, the cotton was wrongfully seized and if he owed rent, it was rightfully seized.
    It has been held that what the judge may say in rendering an opinion does not bind the parties, his side remarks or his views or reasons for his judgment are not part of the judgement and are not res adjudicata. They do not estop any of the parties. It is his finding and the final judgment that controls. Buchner v. Calcotte, 28 Miss. 432; Hort v. Chemical Nat’l Baoih> 27 So. 926.
    In this trial of the landlord’s attachment writ there was nothing* involved except the issue as to whether or not the cotton was wrongfully seized. We submit, the parties are not the same, the issue is not the same, the subject matter is not the same, the relief sought is not the same and the proof required is entirely different in the two eases.
    Counsel assert and cite authorities for his proposition that everything which might have been litigated and settled in the circuit court proceeding, is res adjudicata in this1 proceeding, and then he goes on to assert that Lewis Gladney, the complainant, could have received in the circuit court relief in all these matters now involved in the chancery court. The mere statement of the two cases as to what each court had before it is a complete refutation of this flimsy argument. The mere fact that some of these matters were incidentally before the circuit court in the landlord’s attachment proceeding and that certain of these issues in the present chancery court proceeding might have been raised in the circuit court cause, does not work an estoppel in the present case. Alexander v. 
      Woods, 115' Miss. 164; Terry v. Hageman, 102 Miss. 224; Hardy v. O’Pry, 102 Miss. 197.
    
      
      Corpus Juris-Cyc. References; Judgments, 34 C. J., pp. 921, n. 74; 929, n. 1.
    
   Anderson, J.,

delivered the opinion of the court.

"We have reconsidered this case on suggestion of error, giving the questions argued a painstaking and careful consideration. After doing so, we are of opinion that the judgment of the lower court was properly affirmed.

The adjudication in the rent case in the circuit court settled only one question, namely, whether there was any rent due. 'Every other question determined in that case was merely incidental to that one question. That was not a proceeding to determine the value of the improvements made and the length of the lease. Those questions were subordinate to the one main question, whether there was rent due. The doctrine of res judicata does not cover collateral and side issues leading' up to the main issue. If that were true, it might occur that many lawsuits would be settled in one action, although not involved in the pleadings of the parties. Only the questions' presented by the pleadings in a cause can be adjudicated. Under this principle the accounting had in the circuit court case upon which appellant lays so much stress was a mere collateral question in that case. We think the right result has been reached in this case.

Suggestion of error overruled.  