Northern Pacific Company v. Ellis/Opinion of the Court
'The circuit court held, in its rulings upon the proposed answer and in its judgment, in effect, that the decision of this court upon the former appeal war res adjudicata in this action. If this view was correct, then the judgment below must be sustained, because upon that appeal the question was fairly raised whether the county could lawfully donate the land in question to the railroad company, and it was decided by this court that it could not. It is vigorously contended by appellant's counsel that the rule of law is that a decision can only become res adjudicata when it is contained in a final judgment in the cause, and that the decision upon the demurrer being confessedly not a final judgment, but granting leave to plead over, it cannot be considered as res adjudicata; and authorities are cited which undoubtedly tend to support that contention. We shall not attempt to review the authorities, nor reconcile conflicting decisions. It is sufficient to say that by repeated decisions it has become the settled law in this state that the decision of this court upon a demurrer is conclusive upon the questions legitimately involved, and is res adjudicata in that case. Noonan v. Orton, 27 Wis. 300; Lathrop v. Knapp, 37 Wis. 307; Fire Department v. Tuttle, 50 Wis. 552, 7 N. W. Rep. 549. It is true that this court has decided that an order of the circuit court upon a demurrer is not res adjudicata. This doctrine, however, is based upon the ground that such an order is reviewable by statute upon appeal from the judgment. Hackett v. Carter, 38 Wis. 394. But the decision of this court upon a demurrer upon the questions properly involved cannot be reviewed by the circuit court, nor, indeed, by this court, save upon motion for rehearing. Such questions are finally decided and settled for that case, and, as between the parties to that litigation, for all time. This view of the law decides this case. The complaint charged the appellant's alleged title to be just what the proofs now before us show it to be, and this court, prior to the judgment in the United States court, finally decided that such alleged title was worthless. The question was no longer an open one, and the circuit court was right in ruling out the record of the action in the United States court, and rendering judgment for the plaintiff.'

A writ of error was thereupon sued out from this court.

Wm. F. Vilas, for the motion.

A. H. Garland and H. J. May, opposed.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

The motion to dismiss the writ of error must be sustained. The decision of the supreme court of Wisconsin rested upon an independent ground, not involving a federal question, and broad enough to maintain the judgment. Hammond v. Johnston, 142 U.S. 73, 12 Sup. Ct. Rep. 141.

The supreme court held that by reason of its decision of May 20, 1890, when the case was presented to the court on the appeal of the railroad company from the order of the lower court upon demurrer, the rights of the parties were res adjudicata, and that it was itself, as the parties were, bound by its own former judgment. Its conclusion had been announced, and its mandate had gone down, and it had no power upon a second appeal to review that judgment. This is the settled rule in Wisconsin (Lathrop v. Knapp, 37 Wis. 307; Fire Department v. Tuttle, 50 Wis. 552, 7 N. W. Rep. 549) and in this court, (Clark v. Keith, 106 U.S. 464, 1 Sup. Ct. Rep. 568; Chaffin v. Taylor, 116 U.S. 567, 6 Sup. Ct. Rep. 518; Peck v. Sanderson, 18 How. 42; Hickman v. Fort Scott, 141 U.S. 415, 12 Sup. Ct. Rep. 9.) Under these circumstances the judgment of the supreme court is not subject to review here.

The suit in the state court, involving certain lots, was commenced before the institution of the action in respect to other real estate in the circuit court of the United States; and the judgment of the supreme court of the state had become res adjudicata between the parties before the decree was entered by the circuit court. The judgment before us was rendered in accordance with well-settled principles of general law, not involving any federal question, and did not deny to the decree of the circuit court the effect which would be accorded under similar circumstances to the judgments and decrees of the state court.

The writ of error is dismissed. 

Notes