
    Davis v. Milburn.
    It is not true in all cases, that in order to plead a former judgment in bar of a subsequent suit, both the parties, and all the parties, must be identically the same.
    Where in an action to recover for the rent and occupation of a mill, under a lease, the defendant, alleging, with other defences, that the plaintiff had brought a former suit against him, on a different cause of action, while the said lease was existing, and in that suit, had sued out a writ of attachment, and attached his cattle, carts, wagons, logs, lumber, and other property and material,-by which and for which he carried, on the business of the mill, by means of which he was interrupted in the use of the mill, and could not run the same, and so the use and occupation thereof was lost to him' for a long space of'time — wherefore, and by reason of which, he is not liable for the rent of the mill; and where the plaintiff replied, that the defendant had, (prior to the present suit,) brought an action against the plaintiff, for the wrongful suing out the said attachment, in which action the said defendant pleaded the same matters which are now pleaded in this action, to wit: the attachment of the said property, by and with which, the said mill was carried on, as a ground for the recovery of damages, and that the said matters were permitted to go to the jury, and were heard and tried, in which action the said, defendant recovered damages; and where the plaintiff offered in evidence, the record of the proceedings in the action for wrongfully suing out the attachment, to which the defendant objected: 1. Because the former suit was not between the same parties; 2. Because, on the trial of the former action, the court instructed the jury, that the then plaintiff could recover only for damages sustained prior to the commencement of the action, which objection was sustained, and the evidence excluded; Held, That the court erred in excluding the evidence.
    
      Appeal from the Wappello District Court.
    
    This action was brought to recover for the rent and occupation of a mill under a lease. Tbe defendant pleaded, with other things, that the plaintiff had brought suit against him, (relating to other matters,) while the above lease was existing, and in that suit had sued out an. attachment, and had attached his cattle, carts, wagons, logs, lumber and other property and material, by which and for which he carried on the business of the mill, by means of which he was interrupted and prevented in the use of the mill, and could not run the same, and so the use and occupation thereof was lost to him for a long space of time — wherefore, and by reason of which, he is not liable for the rent of the mill. The plaintiff replied, that the defendant had, (prior to this present suit,) brought an action against this plaintiff, to recover damages as for a wrongful suing out of the said attachment, in which action the said Milburn pleaded the same matters which are now pleaded, to wit: the attachment of the said property, by and for which the mill was carried on, as a' ground for the recovery of damages, and that the said matters were permitted to go to the jury for consideration, and were heard and tried; and it appears that in .that action, Milburn recovered damages to the amount of three thousand five hundred dollars, the full amount claimed in his petition, and that, in fact, the jury found a verdict for four-thousand five hundred dollars, but this being above the plaintiff’s claim, he entered a remittance of one thousand. Upon Davis offering the record of the foregoing cause in evidence, on the trial of the present one, the defendant objected, and the objection was sustained. Exceptions were taken to certain instructions given by the court, which will be found stated in the opinion of the court. Judgment was rendered for the defendant, from which the plaintiff appeals, assigning for error, the rejection of the evidence offered, and the giving of the instructions.
    
      H. B. Hendershott and H. C. Caldwell, for the appellant.
    The plaintiff, to establish the issue raised by his replication, offered to introduce in evidence the record of the judgment in the suit brought by Defendant v. Plaintiff and his sureties, on the attachment bond. To the introduction of this record the defendant objected: 1. Because it was not in a suit between the same parties; 2. Because the judge on the trial of the suit for damages, had instructed the jury that he could only recover the damages sustained by him up to the date of the commencement of the suit, and that the record did not therefore show that his whole claim for damages had been adjudicated. Tbe court sustained tbe objection, and refused to permit tbe record to be introduced in evidence. The court erred in this ruling:
    1. Because the plaintiff’s (in this case defendant,) claim for damages was an entire and indivisible claim; and a judgment for any amount, is a bar to any further suit or offset. Miller v. Covert, 1 Wendell, 487; 1 Greenleaf Ev. 641, note 5, also 644, note 2.
    2. Because the record shows he claimed his whole damages and got all he claimed. The objection that the judge instructed that he could only recover the damages sustained up to date of suit, is not tenable, because, 1. The instruction is not law, and if they were prejudiced by it, they must correct the error in that suit by appeal, or writ of error 2. The record shows defendant was not prejudiced by the instruction, because he got all he claimed. 3. The record shows further, that the court instructed the jury to give plaintiff “ all the damages he had sustained,” and that, to say the least of it, the instructions of the court are conflicting, The record presented a prima facie case, and the court ought to have permitted it to go to the jury, and erred in refusing so to do. 1 Greenleaf Ev. § 532. The record shows that the plaintiff (Milburn) in that suit, claimed damages for loss of profits and delay occasioned by the attachment, and for all the damages and injury sustained by him, and recovered all he claimed by his suit, and all he could legally recover in that suit. The presumption of law is, that he recovered all the damages he sustained and was placed in statu quo, or as nearly so, as dollars and cents could place him. The defendant is bound by the record of this judgment. Marsh v. Pier, 4 Rawle, 243; 1 Greenleaf Ev. §§ 531, 535. It makes no manner of difference, that the record shows that the judgment was against Davis and his sureties. The true question is, who “are the real parties?” 1 Green-leaf Ev. § 535. In other words, can Milburn now sue Davis alone for damages, and prevent Davis from setting up and offering in evidence this record, because in that record the sureties of Davis were also sued ? If two commit a trespass and axe jointly sued, and tbere is a joint judgment, can one of the defendants afterwards be sued, and deprived of the right to show a former recovery, because the parties are not tbe same ?
    2. Tbe court erred in giving tbe following instruction to tbe jury, to wit: “ Tbat if Milburn did struggle ineffectually to run tbe mill during tbe time sued for, but failed to do so witb profit or success, during tbe said time, on account of tbe wrongful suing out of tbe attachment, then tbe verdict should be for tbe defendant.” In giving this instruction, tbe court did certainly err. No eviction is set up in tbe answer, or pretended. He occupies our mill, is not evicted, retains possession, uses tbe machinery of tbe mill and the mill property, tbe only thing leased to him, makes no offer of a surrender, gives no notice tbat tbe attachment has practically operated as an eviction; but after enjoying tbe full and undisturbed possession of tbe leased premises and using tbems comes in and asks to be released from paying any rent at all because be could not run tbe mill “ witb profit or success.’’ See 4 Cowen,'581.
    
      G. G. Hourse and A. Hall, for tbe appellee, cited no authorities,
   Woodward, J.

As to the first of these two grounds of objection. The former action was brought on the attachment bond, against Davis, the principal, with Shepherd and Mayne, his sureties in the bond. It is not true in all cases, that in order to plead a former judgment, both the parties, and all the parties, must be identically the same. Such a case as the present one forms one of the exceptions. Davis was the sole meritorious party in the former action, the others being only sureties on the bond. There was no question of right, title or interest, in which they were conjoint with Davis, to be settled. The only matter of that nature was between Milburn and Davis, and if the original common law order of suing in such a case, still prevailed, this would appear. Then Milburn would have to sue Davis alone, in the first instance, to determine whether the attachment had been sued wrongfully, 'and to settle the damages; and then, if they were not paid, he would sue the sureties, with the. principal on the bond. By the modern practice, we sue on the bond in the first instance. But this mode of proceeding cannot affect the substantial rights of parties in the other bearings of the case. See authorities cited'by appellant’s counsel. The second objection to the admission of the record of the former suit, was that Milburn, in that suit, could not recover for damages accruing subsesequently to the commencement of it. This is true. But jet, if be brings bis action too soon, it is bis own misfortune or fault. His cause of action was one and indivisible, and be could not'sue again; and for tbe same reason, be cannot make tbe use be now seeks, of tbe subject matter of it. It appears perfectly manifest that Milburn cannot both recover for tbe interruption of tbe use by Davis, and also refuse to pay rent for tbe use. Tbis would be equivalent to recovering twice for tbe same thing. And on tbe first point, tbe case put by plaintiff’s counsel, is pertinent. If two commit a trespass, and are sued jointly, and there is a joint judgment, can one be afterward sued, and deprived of tbe right to show the former recovery, because tbe parties are not tbe same? Tbe record should have been admitted in evidence. !

The next error is assigned upon tbe following instruction, given by tbe court, at tbe request of tbe defendant“ If Milburn struggled ineffectually to run the mill, during tbe time sued for, but failed to do so with profit or success, on account of tbe wrongful suing out of tbe attachment, then tbe verdict should be for tbe defendant.” This instruction was given upon the basis that tbe record of tbe former suit could not be made evidence as a bar, and that Milburn might yet recover further for the same cause of action, though for damages accruing subsequently to tbe former suit; and as this was an error, so was tbe giving the instruction, however correct it might have been in the former suit. Upon tbe same ground, that is, tbe ruling of the court that tbe former cause of action could be inquired into in tbis suit, tbe plaintiff requested tbe court to instruct that tbe suing out tbe attacbment must be willful, as well as wrongful, in order ti> constitute a ground of aetion or defence, which'the court rightfully refused. The plaintiff further requested tbe court to instruct, that if the plaintiff believed that tbe defendant was about to dispose of bis property, &c., be bad a right to sue out tbe attacbment. The refusal of both thése instructions was correct, upon tbe ground that tbe former suit could not have been inquired into, having been previously disposed of. As to tbe doctrine of these instructions, see tbe case of Mahnke v. Damon & Co., 3 Iowa, 107.

The judgment of tbe District Court is reversed.  