Harris & Co. v. Thlinket Packing Co.

Citations

• 5 Alaska 493

Syllabus

<p>1. Judgment <&wkey;570(5)—Estoppel—Dismissal Without Prejudice.</p> <p>Where a cause of action is dismissed for a failure of proof only, and not going to the merits of the cause of action, it will be treated as a dismissal without prejudice and will not constitute a bar to the same cause of action in a subsequent suit.</p> <p>2. Judgment <&wkey;720—Estoppel—Res Judicata.</p> <p>In a second controversy between two parties, if the cause of action be the same as it was in the first controversy, the judgment is an estoppel both as to all things that were litigated and of things that might have been litigated; but if the cause of action is not the same, then the judgment in the former action is an estoppel only upon those matters in issue or points controverted, upon the determination oí which the finding was rendered.</p> <p>¡&wkey;>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Injunction <&wkey;136(2)—Fish Traps—Location.</p> <p>Where plaintiff first lawfully located and constructed a fish trap in the waters of Alaska, and the defendant thereafter attempted to locate and construct another within a distance prohibited by law, the construction of the second trap will be enjoined at the suit of the plaintiff whose lawful trap is injured in its operation thereby.</p> <p>4. Injunction &wkey;>136(2)—Fish Traps.</p> <p>A. located a fish trap site in the waters of Alaska, and had begun the actual physical erection of a pound net or fish trap thereon in compliance with law, and had the same virtually completed and ready for fishing, when enjoined at the suit of B. on an ex parte application. Thereupon B. began the erection of a similar pound net or fish trap within a distance from A.’s trap prohibited 'by the statute. On a subsequent suit, brought by A. against B. to enjoin the completion of B.’s trap, held, B. could not, by tying A.’s hands in the first suit, make the structure erected by him within the prohibited distance a lawful one. B.’s tr