City of Carthage ex rel. Cook v. Weesner

116 Mo. App. 118 | Mo. Ct. App. | 1906

ELLISON, J.

The relators instituted this action on two special taxbills against property owned by defendant in the city of Carthage. The judgment in the trial court was for the defendant. The bills in suit were cancelled by the judgment of a court of competent jurisdiction in a suit in equity brought by this defendant against the Central National Bank of Carthage, 106 Mo. App. 668. That judgment was pleaded as res adjudicate in this case. The plea was sustained. It appears that the taxbills were originally issued to relators for building a sewer in Carthage and that they assigned them as collateral security for borrowed money to the Central National Bank by writing their names on the back thereof and delivering them. After the bills were declared void by the judgment aforesaid, they were delivered back to these relators and after-wards they instituted the present, action, as stated.

The law is that privies to the parties to an action are bound by the judgment rendered therein as completely as the parties themselves. Those who- claim property under one, who was a party to a judgment affecting his right to, or in, such property, are privies and bound by such judgment. [Cooley v. Warren, 53 Mo. 166, 169; Litchfield v. Goodnow, 123 U. S. 549; Barton v. Martin, 60 Mo. App. 351.] Privity may exist from “relationship by succession or representation between the party to the second action and the party to the prior action in respect to the right adjudicated in the first action. When this exists, the party to the second action is barred by an adjudication upon the right made in the first action.” [Stamp v. Franklin, 144 N. Y. 607, 611.] Manifestly, when plaintiff put the title to the bills in the bank and then after the judgment against the bank received them back, he took them as a holder in succession under the bank for all purposes of application of the rule of res adjudicaba.

But again, plaintiff stated, by way of testimony which they gave in their own behalf, that they not only assigned the bills as collateral, but that the bank was to collect them, and that it was threatening to enforce collection by suit. -Where an action is brought in the name of one person at the instance of another, the judgment will conclude the latter. [Cheney v. Patton, 144 Ill. 373.] And this is assuredly so when the cause of action has been assigned to' him who brings the suit. [Garrettson v. Ferrall, 92 Iowa 728.] It is true that the action brought was instituted against the bank instead of by that institution; but that can make no difference ; the authority to sue would imply the authority to defend.

The foregoing view is in harmony with the law and practice long established in this State, that a promissory note may be assigned merely for collection and that the assignee may sue in his own name. If defeated on the merits in such action, it would scarcely be pretended that res adjudicada could not be successfully interposed in a subsequent action brought by the assignor.

We are satisfied the trial court took the correct view of the case and hence affirm the judgment.

All concur.