Opinion
12514
October 29, 1928.
In the original jurisdiction, Spring term, 1928. Petition dismissed, and injunction refused.
Original action by V.S. Davis against the Town of West Greenville and the town council thereof.
Mr. C.S. Bowen, for petitioner, cites: " Res adjudicata": 113 S.C. 217; 118 S.C. 470; Sec. 362, Code Proc.; 13 S.C. 290; 141 S.C. 121, 125; 17 S.C. 406; 146 S.C. 338, conclusive of case at bar.
Messrs. Blythe Bonham, for respondent.
October 29, 1928. The opinion of the Court was delivered by
This is an action brought in the original jurisdiction of the Court to enjoin the issue of $65,000 bonds for the purpose of "establishing and maintaining a waterworks plant" in the Town of West Greenville. The only question for decision is whether the case of Hunter v. West Greenville, 146 S.C. 338, 144 S.E., 62, is res adjudicata as to the issues raised by this appeal.
The law as to res adjudicata is firmly established in this State. In Bartell v. Edwards, 113 S.C. 217, 102 S.E., 210, this Court says:
"It is elemental law that a judgment not only estops the parties to the action and their privies from again raising the questions at issue in that case, but also such questions as might have been raised and decided by it."
The question was fully and ably discussed and decided by a unanimous opinion in the case of Johnston-Crews v. Folk, 118 S.C. 470, 111 S.E., 15. In this case Justice Cothran shows by the citation of early cases in South Carolina that there are three essential elements of res adjudicata: "(1) Identity of the parties; (2) identity of the subject-matter; (3) an adjudication in the former suit of the precise question sought to be raised in the second suit."
In the Hunter case, an action was brought by one taxpayer in behalf of all; in the present case, the action was brought by another taxpayer in behalf of all taxpayers. Under these circumstances, there is undoubtedly an identity of parties. Section 362, Code of Laws, 1922, Vol. 1; State ex rel. Brown v. C. L.N. G R. Co., 13 S.C. 290.
As to (2) and (3), the case of Johnston-Crews v. Folk, supra, holds:
"If the identity of the parties and the identity of the causes of action have been established, the former adjudication is conclusive, not only of the precise issues raised and determined, but such as might have been raised affecting the main issue."
The above-quoted language is quoted with approval in Brown v. Huskamp, 141 S.C. 121, 125, 139 S.E., 181, 182. The definition of "cause of action" has been followed in all subsequent cases, and was quoted in the case of Johnston-Crews v. Folk, supra.
It is only necessary, therefore, to determine what was the cause of action in the Hunter case, and what is the cause of action in the case at bar. If the causes of action are the same in both cases, then the question in consideration in this case could have been raised and decided in the Hunter case, and the questions in this case are therefore res adjudicata by reason of the decision in the Hunter case.
In the Hunter case the action was to enjoin the issue of $65,000 bonds (the same issue that is attacked in this case), upon the grounds that the bonds, if issued, would be null and void because of the illegality of the election upon the issue of said bonds. The subject of action in the Hunter case was the "bonds proposed to be issued." The "cause of action" was: (1) The taxpayers' "primary right" to have issued legal bonds only, and the town's "primary duty" to issue such bonds. (2) The delict of the defendant was the alleged failure to issue legal bonds, the particular delict alleged being that the election was illegal and the bonds were, therefore, invalid. To confirm the above analysis an examination of the Hunter case shows that it is alleged in the first paragraph that "the special election for water bonds * * * is null and void." The invalidity of the election was based upon five specifications, all relating to registration. The prayer asked that the election be declared void and that the town be enjoined from selling the bonds.
It appearing, therefore, that there is an identity of parties in the two actions, that the subject-matter of the causes of action in both actions is the same, "the former adjudication is conclusive, not only of the precise issues raised and determined, but such as might have been raised affecting the main issue."
It is the judgment of this Court that the petition be dismissed and injunction be refused.
MESSRS. JUSTICES COTHRAN, BLEASE, STABLER and CARTER concur.