120 Ill. App. 424 | Ill. App. Ct. | 1905
delivered the opinion of the court.
The contention in this case is as to the effect of the decree rendered in the foreclosure proceedings upon the present suit, when such decree is offered in evidence as res judicata. The issue in each suit was whether or not these notes were binding upon the estate of Isabella H. Thomson, deceased.
It is elementary that one holding promissory notes secured by a trust deed, may bring assumpsit on the notes and also may file a bill to foreclose the trust deed at one and the same time._ The pendency of one of these suits cannot be pleaded in abatement of the other. Each court has jurisdiction to hear and determine the issues involved in the cause before it. Both actions may proceed to final judgment. The only limitation is that there can be but one satisfaction.
The estate of Isabella H. Thomson, deceased, was a proper party to the foreclosure proceedings. - She .had signed the notes and trust deed. Had she lived until that suit was started she would have been a necessary party. Gilbert v. Maggord, 1 Scam. 471; Leonard v. Villars, 23 Ill. 322; Wiltsie’s Mtg. Forcl., secs. 135, 207. Mrs. Thomson having died before the suit in equity was begun, her administrator" was a proper party thereto. Even if this were not so, appellee is estopped to "raise the question by his appearance in that suit, filing an answer therein, and contesting the right of appellant to a decree.
The facts of this case rénder the citation of authorities unnecessary upon the question of what is and what is not res judicata. It is admitted that the parties in the two actions are the same, and that the same defense was interposed to the claim in the law trials before Judges Hanecy and Dunne as was set up in the chancery proceedings. The decree in the Superior Court preceded the first trial upon the claim in the Circuit Court. That decree has never been set aside. On the contrary it was affirmed by this court and by the Supreme Court. It fixed the liability of the estate of Mrs. Thomson to pay any deficiency that might arise from the sale.
No question of jurisdiction was involved in the offer in the trials at law to put in evidence the foreclosure proceedings, and then, if admitted, to ask the court to pass upon their effect. The law court had still the right to hear and determine the case before it upon such competent evidence as the parties might see fit to present for its consideration.
The fact that the decree of foreclosure was appealed from and that such appeal was pending at the time of the trial before Judge Hanecy, did not suspend the effect of the decree as res judicata. An appeal does not destroy the lien of a judgment or decree. Until vacated that decree was competent and conclusive evidence in the suit at law, both cases being between the same parties and upon the same subject-matter. Brown v. Schintz, 203 Ill. 136, and cases cited. Even if this were not the law, appellee is not advantaged thereby, for the reason that prior to the trial before Judge Dunne the decree had been affirmed.
“A judgment is properly deemed a bar to further litigation on principles of public policy, because the peace and order of society require that a matter once litigated should not again be drawn in question.” 6 Wait’s Actions & Defenses, 767.
“The judgment of a court of competent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter directly in question in another court.” DeGrey, C. J., in Duchess of Kingston’s case, 11 State Trials, 198, cited in 2 Smith’s Lead. Cas., 573.
The order of time in the bringing of the two suits is immaterial. A prior judgment upon the same cause of action sustains a plea of a former recovery, although the judgment is in an action commenced subsequently to the one in which it is pleaded. 6 Wait’s Actions & Defenses, 769; Casebeer v. Mowry, 55 Pa. St. 422; Sharon v. Hill, 26 Fed. R. 337-344. Sharon v. Hill, supra, was a suit brought by Sharon October 3, 1883, to have a certain alleged declaration of marriage between himself and the defendant declared to be false and fraudulent and be delivered up to be canceled, etc. November 1,1883, Hill, by the name of Sharon, commenced a suit for divorce from Sharon in the Superior Court of the State of California, in which this declaration of marriage was set up. In December, 1884, the State Court found that said declaration of marriage was true and genuine. From this decree an appeal was taken which was pending at the time of the trial of Sharon v. Hill. In that trial the finding of the Superior Court was set up as res judicata, between the parties. In passing on this matter the court says: “ One other question remains to be disposed of before passing to the consideration of the genuineness of the alleged declaration of marriage, and that is the effect of the finding and adjudication of the Superior Court in Sharon v. Sharon. At first blush I was of the impression that this suit having been first commenced, neither the right to maintain it, nor the determination o.f any question involved therein, could be affected by any finding or judgment in the case of Sharon v. Sharon. But on further reflection and examination of the authorities I am satisfied that the law is otherwise as to the effect of the finding or judgment. It matters not in which suit the subject of the controversy or any question involved therein is first determined; the result may be set up as a bar or estoppel, as the case may be, against the further litigation of the same matter in the other. The maxim, interest reipublicae ut sit finis litium, equally applies.”
In Allis v. Davidson, 23 Minn., 442, Allis brought suit August 17,1874, in the District Court of Ramsey County, Minnesota, to impeach the validity of a note and mortgage and to procure their cancellation. While that action was pending Davidson filed a bill in the U. S. Circuit Court to foreclose the same mortgage, and obtained a decree of foreclosure in which the amount due upon the note was ascertained, a sale ordered, and Allis found to be personally responsible for the deficiency, if any, arising from the sale. Davidson set up these matters in a supplemental answer in the first suit. Allis demurred. The court overruled the demurrer. On appeal the Supreme Court say:
“ Under the issues tendered by the bill of complaint in that (U. S. Court) suit, the validity of the note and mortgage in controversy, and the amount due thereon, were necessarily involved and adjudged by the judgment therein rendered. The jurisdiction of the court being undoubted, both as respects the subject-matter and the parties, it follows that its judgment, when properly pleaded, is a conclusive bar to any further litigation of the same matters arising between the same parties in any other action, whether such other action was begun before or after the suit wherein judgment was rendered.”
In Bellinger v. Craigue, 31 Barb. 534, the plaintiff sued Craigue, a physician, for malpractice. While the case was pending.the defendant brought an action of assumpsit 'before a justice of the peace for his fees, and recovered a judgment for the whole amount claimed. Upon the trial of the first case the defendant interposed the justice judgment as res judicata. Held, that as the plaintiff’s claim was Avithin the issue joined in the justice court, and its determination necessarily was included in that judgment, such judgment was a bar to the cause of action set up in the first suit. See, also, to the same effect, Davis v. Bedsole, 69 Ala. 362; Maher v. State, 53 Ga. 448; Paine v. Schenectady Ins. Co., 11 R. I. 411; President, etc. v. Brown, 50 Me. 214; Duffy v. Lytle, 5 Watts, 131.
Our conclusion is that the trial court committed reversible error in excluding the f ''reclosure proceedings offered in evidence by appellant, and therefore we reverse the judgment of the Circuit Court and remand the cause.
Reversed and rem-cmded.
