3 TTR 465

HASUMI OSAWA, 
Plaintiff

v.

ERNIST LUDWIG, 
Defendant

Civil Action No. 399
Trial Division of the High Court
Truk District

See, also, 3 TTR 594

Hearing on motion to dismiss. The Trial Division of the High Court, Robert Clifton, Temporary Judge, held that where plaintiff's claims had previously been tried and an appeal taken they could not be considered again by court in another action between the same parties.

Action dismissed.

1. Judgments - Res Judicata
Res Judicata is defined literally as "the matter has been adjudged".
2. Judgments - Res Judicata
It is a fundamental principle of jurisprudence that material facts of questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein and that such facts or questions res judicata and may not again be litigated in a subsequent action between the same parties or their privies.
3 Judgments - Res Judicata
The fact that a party failed or neglected to establish certain facts at a former trial does not give his successor a right to do so by filing a new action covering the same subject matter.
4. Judgments - Res Judicata
Where the matter set forth in the complaint and in plaintiff's claim in a new action have been tried and decided in a prior action it cannot be tried again in a new proceeding.

Counsel for Plaintiff:	KINTOKI JOESPH	
Counsel for Defendant:	MITARO S. DANIS	

CLIFTON, Temporary Judge
A pre-trial conference was held at Moen, Truk District on February 17, 1968, it appearing that the claims of the plaintiff in this action as set forth in his complaint and as stated by his counsel at the pre-trial conference have been tried and decided in another action in the Trial Di-vision of the High Court, to wit: Civil Action No. 127, Truk District, 2 TTR 428, and that the judgment in said action has been affirmed by the Appellate Division of the High Court in Civil Appeal No. 22, 3 TTR 594, on motion of said counsel for the defendant,
It is ordered that the above action be and the same hereby is dismissed.
OPINION
[1, 2] The motion of the defendant presented a plea in bar of the plaintiffs cause of action, that is, the defense of res judicata. Res judicata is defined literally as "the matter has been adjudged." A general explanation of res judicata is contained in the following quotation from 30-A Am. Jur. 2d, 411, 412 (§ 371, Judgments):-
	"It is a fundamental principle of jurisprudence that material or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein and that such facts or questions become res judicata and may not again be in a subsequent action between the same parties or their privies...."
The judgment in Ernest L. v. Akung and Kintoki 2 TTR 428, decreed as follows:-
	"As between the parties and all persons claiming under them, the part of the land known as POW or POU, located in Muanitiw Village, Udot Island, Truk District, bounded follows:-
	On the north by the Village of Benia, 
	On the east by the land Neimueden and the main hill of Witonap, 
	On the south by the land Wnifou, and
	On the west by the mangrove swamps and lagoon, 
	is owned by Ludwig who lives in Muanitiw Village, for whom the plaintiff makes claim in this action, and neither the defendant Akung nor the defendant Kintoki (both of whom live on Udot Is-land) has any rights of ownership in this part of POW."
After the judgment was entered and the appeal taken, Akung died, and the plaintiff herein was substituted in the appeal for Akung who, according to the order allowing substitution, was acting for the lineage Wisusu. The issues between the parties in said action were spelled out in detail by the complaint and the Pre-trial Order. In considering a plea of res judicata it is proper to consider the pleadings and judgment in the action. See: 30-A Am. Jur. 2d, 507 (§ 467, Judgments) .
At the pre-trial conference in this present action at which time the defendant moved to dismiss, the counsel for plaintiff Osawa admitted that the lands in question herein were within the boundaries described in the judgment order in Action No. 127 [2 TTR 428] setout above. However, he argued that the matter of present complaint should not be held to be res judicata, that is, decided in No. 127 [2 TTR 428], because, the pieces of property mentioned in the present complaint were not included in those transferred to Kamekichy for farming purposes, the trees were not cut down which indicated that this land was not among those paid for by Kamekichy and that Akung did not share any of the money he got from Kamekichy with members of his lineage, including Tomato who died in 1961 several years before the entry of the judgment in Action Number 127 [2 TTR 428]. It was agreed that Akung, Tomato and Osawa, the plaintiff herein are' of the Wisusu lineage.
Because of the above mentioned pleadings and the stipulation mentioned one cannot escape the conclusion that the matter which the plaintiff Osawa is asking to be heard in this action is the same matter as that already heard and determined in Action Number 127 [2 TTR 428].The parties are the same and the land in question in the present action is within the boundaries described in the judgment order in Action Number 127 [2 TTR 428]. It should be noted that in the pre-trial order in Action Number 127 [2 TTR 428] one of the questions to be determined was set forth as follows:
	" (d) The location of the lands claimed to have been acquired from Kamekichy and the location of the lands claimed by the defendant and intervenor."
[3] It was, therefore, the responsibility of Akung to show what lands, if any, were not acquired by Kamekichy, that is, if he had not acquired certain lands it would follow that he could not have transferred such to Ludwig or to put in another way, Ludwig could not have acquired them. It is possible that Akung failed or neglected to do this during the trial, but this does not give Osawa, his successor, a right to now do this by filing this new action. See: 30-A Am. Jur. 2d, 410 (§ 369, Judgments). Furthermore, an examination of the brief filed on behalf of Osawa on the appeal in Civil Appeal No. 22 [3 TTR 594] shows that some of the main arguments in the brief were as to why the lands in the present action should not have been included in the lands decreed to belong to Ludwig in Action Number 127 [2 TTR 428], which are the same arguments Osawa now uses as a basis of his claims in this action.
[4] The matter set forth in the complaint and in plaintiff's claims at the pre-trial conference in this action having been tried and decided in Action Number 127 [2 TTR 428], it cannot be tried again in this proceeding, and so the defendant's motion to dismiss must be granted, as above ordered. It follows that there is no need for the usual pre-trial order.