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Show face Friday, July 18, 1958 THE DAILY RECORD 4 Extracts from Recent Decisions of the Supreme Court of the State of Utah disconnected for the same reasons gigven in the prior suit. Appellants contend that the In the Matter of the Disconnection court erred' in applying the docof Part of the Territory of the trine of res judicata to them because (1) a disconnection Town of West Jordan, Inc. No. 8811 in nature and (2) their is petition not based on the same cause for action involved in the WADE, Justice: This is on appeal from an proir suit order of dismissal with prejudice We cannot agree with appelagainst some petitioners in a suit lants first contention. While the to disconnect land owned by them changing of the territorial limits from the territory of the Town of of a municipal corporation is West Jordan, Inc. because they primarily a legislative and not and the land they owned had a udicial function, 1 the disconbeen involved in another petition nection of lands undo: the profor disconnection, (Civil suit No. visions of Sections and 2, 112503 in the District Court of U.C.A. 1953 involve ascerSalt Lake County) and severance tainment of facts to determine the had been granted. The court in conditions upon which the law is the instant petition concluded to take effect and this is a judithat as .to such petitioners this cial function.2 action involved the same parties We are of the opinion, however, and subject matter and therefore that appellants contention that under the doctrine of res judicata doctrine of res judicata does they were barred frof relitigating the not apply because the present the matter. 1, Section U. C. A. 1953 petition is not based on the same of action involved in. the grants to a municipal corpora- cause suit is correct. As stated tion upon petition of a majority of proir Am. 30 in Jur, Judgments, Sec. real property owners the power 363: to extend the borders of its bounA final judgment on the daries by annexing such propermerits rendered by a court of ties. This power, however, is lim2, competent jurisdiction is conited by Section and U.C.A. 1953, which grants to clusive as to the rights of the district courts upon the petition parties and their privies, and of a majority of real property as to them constitutes an abowners in territory lying within solute bar to a subsequent action involving the same claim, and upon the borders of a municipal corporation to determine demand, and cause of action. whether under the facts it finds If, however, the two suits do justice and equity require that not involve the same claim, and cause of action, suchc effect severance be granted. It appears that when the Town will not be ordinarily given to of West Jordan determined to the protr judgment. In this issue general obligation bonds in respect, it is worthy of notice the sum of $750,000.00 for a sewer that there must be not only ' of subject matter, but project, appellants were among identity cause of action, so also of the petitioners who sought and were that a judgment in a former granted severance from the town action does not operate as a bar upon the ground that the benefits to a subsequent action where they would receive from the pro- the cause of action is not the ject would not be commensurate each action rewith theobligations to which they same, toalthough same the subject matwould be subject. About two lates weeks after this severance was ter. . . granted, the Town Board of West Appellants right to petition Jordan passed an ordinance an- court for disconnection under the U.C.A. nexing territory including lands provisions of Sec. heretofore severed, as well as an 1953 could not arise until their ordinance annexing territory in- lands were annexed by the town cluding lands severed, as well as when it passed the ordinance exlands not included in the prior tending its boundries to include action. Thereupon, petitioners in them. When the town passed the the instant suit, among whom ordinance and annexed the lands, were appellants, filed a petition appellants right to petition for seeking to have a part of the disconnection sprang into exissame lands heretofore severed, tence. Since the lands did not IN THE SUPREME COURT OF THE STATE OF UTAH pro-pudlc- ial 10-4- -1 10-3-- 10-4- -1 10-4-- 10-4-- 1, 10-4-- again become part of the territory of thle town until two weeks after the severance in the prior action, their petition did not involve the same cause of action even though part of the subject matter was the same and the same reasons were given for desiring the severance. The situation here is analagous to the example given in the Restatement of the Law on Judgements, Sec. 61, Comment c, where it is pointed out that where there have been two batteries by and against the same person at different times the principla of res judicata does not apply because the transactions are different even though under ithe pleadings in the first action evidence as to the second battery would have been admissible and would have sustained the first action. Although the court in the proir action had found from the evidence presented to it that justice and equity required a severance and in the ordinary case where a judgment has been granted on issues which have been litigated between the same parties such issue under the doctrine of collateral etoppel 3 mannot be relitigated in a subsequent but different cause of action, this doctrine does not apply here because the doctrine does not have any bearing on the question here presented. That doctrine only applies where a question of fact essential to and determinative of the judgment is actually litigated and determined by a valid or final judgment which is conclusive as between the parties to a subsequent action on a different cause of action. Since this action is based on a new and different ordinance which necessarily requires the determination of essentially different facts from those determined in the previous action that doctrine can have no application to this case. Another and controlling reason why respondents position cannot be sustained is that in the former action the court severed the land from the city, but if we were to affirm the trial courts decision that appellants cannot maintain this action, the effect would be to overrule the previous decision and hold that appellants may not assert the rights therein now granted them. In other words, the effect which respondent claims for the previous decision in this case is that the city may take actions which completely mullify the severance decreed in that action, but because there was a farmer action appellants are forever barred from contesting the annexation of their property to the city because the court in the previous action determined similar issues in their favor. Such deciseons not being adverse to appellants claim in this action does not have the effect of preventing them from maintaining this action. Such a holding would have the effect of reversing the decision which is now claimed and Knight v. Flat Top Min. Co., 6 Utah 2d 51, 305 P. 2d 503. 4, State v. Erwin, 101 Utah 365, 422-42- 120 P. 2d 285, 311-31- 3. SUBSCRIBE NOW to be determinative of this case. This strange result clearly demonstrates that the issues are different in the two cases. Reversed. Parties to bear their own costs. .WE CONCUR: Mord My Roger j. McDonough, Chief Justice J. Allan Crockett, 421 Church St, Justice Geo. W. Worthen, Justice F. Henri Henroid, EM Justice 1. 4-36- 49 Plutus Mining Co. v. Orme, P. 132, and Ap- - 76 Utah 286, 289 la IDiidH (M(o offers a ready-mad- e market for all types of businesses. quick analysis of these columns will reveal many valuable prospects for your services. A The Daily Record offers reliable, up-to-the-min- ute information in concentrated form no need to wade through thousands of words to find your leads. Its all plainly listed and compiled for you in classified order. 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