Thе theory of law upon which the court sustained the demurrer, if correctly assumed by respondents in their brief, was that the Scott judgment rendered by the Polk Circuit Court against the City of Springfield, is res judicata as between appellant and respondent, both being parties to this suit, which resulted in the judgment in favor of Plummer and against appellant. If they were adversary parties, as they are assumed to have been by the respondent, then that the judgment would be a complete and effectual bar to appellant’s right to recover in this action admits of no doubt, irrespective of the fact that they were co-defendants, for an issue once tried on its merits and reduced to a final judgment, however raised, precludes the retrial of the samе issue between the same parties in any other form of action. Wiggins v. St. Louis, 135 Mo. l. c. 569; Young v. Byrd,
The Polk county judgment is conclusive of all the issues involved in the pleadings in that case, and is cоnclusive against the city of Springfield that Scott came to his death by reason of its negligence, and is conclusive as between Mrs. Scott and Plummer that Scott did not come to his deаth through the negligence of Plummer, but it is not conclusive of the latter fact as between Plummer and the city, who were co-defendants in the suit, unless that issue was raised by them in some manner at the trial. It is not disclosed by the petition on what rulings of the court Plummer escaped liability, and it is not a matter about which we may venture.to guess or make surmises. The full record of the trial cаn only disclose the history of that trial and from it, and from it only, can be ascertained whether Plummer and the city joined in a common defense, or became adversary parties. If the defense was a common one, and in no respect adverse, it is very certain the judgment furnishes the respondents no bar to a recovery in this suit. O’Rourke v. Railway Co.,
Mr. Ereemаn in his work on Judgments (Vol. 1, sec. 158) says, “Parties to a judgment are not bound by it in a subsequent controversy between each other, unless they were adversary parties in the original action,” that “whеnever the rules of practice permit defendants to make issues among themselves and to have such issues determined and relief granted, thereupon they become advеrsary parties upon interposing pleadings setting forth their conflicting interest and calling for the granting of appropriate relief, and a judgment or decree determining such interеst and granting or denying such relief is as conclusive upon them as if they had been plaintiff and defendant instead of co-defendants.” Under our practice act, Plummer and the city of Springfield, as co-defendants in the Scott suit, might have set forth conflicting interest and called for appropriate relief, but it does not appear on the face of the рetition that they did this, neither does it appear from the petition that the point in controversy in this suit, to-wit, that Scott came to his death by the sole negligence of the city of Springfield and not by the negligence of Plummer, was adjudicated as between them as co-defendants. We, therefore, hold that the petition does not state facts from which
II. It is contended by respondents that Plummer had no notice of the Scott suit, that he was not сonsulted in respect to tire suit nor allowed to control the defense or to select counsel to make a defense, and for these reasons the judgment is not conclusive against them. To say that Plummer had no notice of the suit would be to contradict what is alleged to be in the record of the cause, to-wit, that Plummer was sued as a co-defendant, appeared and defended the suit. Notice is implied where one answerable over, had actual knowledge of the suit and participated in its defense. Plumb v. Goodnow,
Ill It is alleged in the petition that both the city of Springfield and Plummer appeared in the Polk Circuit Court and defended the Scott suit. If they made a common defense and were harmonious in the conduct of that defense on the trial, respondents are estopped, according to аll the authorities, to deny any of the issues that were adjudicated by the trial and judgment, and the only question open to them as a defense is, whether the negligence by which Scott camе to his death is attributable to Plummer or to the city of Springfield ? On the other hand, if the city of Springfield refused to cooperate with Plummer in the defense of the cause, and pursued