2 Posey 97 | Tex. Comm'n App. | 1880
There being in the record neither a statement of facts nor any bill of exceptions, the judgment of the district court will not be revised, unless the presumption in favor of its validity is sufficiently repelled in the record itself to dispense with those ordinarily essential means to indicate error. “ Every presumption is to be indulged in favor of the verdict and judgment of the court below, and it is incumbent upon the party seeking to reverse a judgment to evince that it is erroneous.” Campbell v. Skidmore, 1 Tex., 476. And unless the party complaining presents the case in such a manner as to show the error, the presumption in favor of the judgment must prevail. Chandler v. The State, 2 Tex., 306.
We have no evidence before us whereby we may ascertain the basis of the conclusions formed by the judge who tried .the case; it may be that the evidence before the court well warranted the judgment. The evidence on the trial
The rules applicable to those cases where the record presents a statement of facts become still more effective in support of the judgment where there is no statement of facts. The supreme court, in Blackwell v. Patton, supra, said: “We will not consume time in the consideration of questions which the parties have not taken the pains to show us to be material.” A class of cases, falling within a narrow range, however, exist where, indeed, a statement of facts is unessential, to require revision, as is illustrated in Galbreath v. Templeton, 20 Tex., 46, where the court re
And although we conclude that we may not be warranted in revising the judgment below, in view of the opinion we entertain of the merits of the question, and as from it the result to the parties would be the same, we deem it not improper to give expression to it, which is, that the court did not err in sustaining, as sufficient, the plea of the
The allegations made in the amended petition do not serve any further purpose than to indicate the evidence which may tend to support the material allegation which is common to both suits, viz., the acquisition, absorption' and diversion, in the modes and by the devices therein defined, of profits and earnings of the railroad company, wkereby the defendants became liable personally to pay the plaintiff.
The alleged trust alleged thus to have arisen was not a new and distinct one from that expressly assumed in the original transactions between the parties; it was but the evidence of the breach or disregard of it. The causes of action and the issuable matters of both suits were the same in legal effect.
The plaintiff in his second suit does not allege a fraudulent concealment by defendants of the new or additional facts contained in his petition, or ignorance of their existence at the former trial, if in law they would have been sufficient to constitute an essential and material variation in his right to a recovery; but this suit seeks to maintain itself on the broad proposition that the subject-matter of litigation presented by it has not been before adjudicated.
The judgment is conclusive of such matters in actual controversy as are essential elements in the determination of the case; and a necessary matter of defense not specifically put in issue is conclusively determined against the defendant by a judgment for the plaintiff; a proposition which is based upon the ground that the defendant, having had an opportunity to make defense, voluntarily failed and neglected to do so. Bigelow on Estoppel, 106. The rule is not less applicable to the plaintiff.
The rule is illustrated in many cases stated in Bigelow on Estoppel, and with special force and point in the leading case of Homer v. Fish, 1 Pick., 435, where, in an action to recover back insurance money obtained by the defendant upon a judgment against the plaintiff, the declaration alleged that the property insured had perished before the insurance was effected; that the defendant, knowing the facts, fraudulently caused an insurance to be effected with the plaintiffs; that he subsequently proved the loss; and then, in furtherance of their conspiracy, instituted suit and obtained judgment and satisfaction of execution. The defendant pleaded the judgment which they had obtained in bar of the action, alleging that it had not been annulled or reversed. To this the plaintiff replied that he did not know of the fraud until after the time had elapsed within which proceedings could have been had to vacate the judgment; to which the defendant demurred. And the court sustained the demurrer. Parker, O. J., speaking for the court, said: .“ That the only plausible ground upon which the case could be put was that the matter of fraud, the gravamen of the action, had not come in question in the trial of the insurance policy; but he said that the rule would not admit of such an exception. It was sufficient that the action was of
Is there in the cause of action set forth in the petition in this suit any ground for its support, and for a recovery against the defendants, in case the result of the former suit had been the reverse of what it actually was? Surely, if the plaintiffs had recovered the judgment then prayed for, there would exist in the petition in this case nothing in addition relating to the subject-matter of former litigation beyond allegations cumulative of the basis for one of the elements of each and both actions, but they would suggest no new, different or distinct right from that which furnished the foundation of the former judgment. The judgment would have included the finding of, and would have been conclusive of, the fact that the defendants had received an amount sufficient to render them liable to the plaintiffs, and the facts alleged in the petition in this case additional to the former petition, whether true or false, would have been immaterial so far as they might serve to affect the rights of plaintiff or defendants in respect to any additional remedy on the contracts and transactions of the parties.
Careful consideration has brought us to the conclusion that the principle invoked by the counsel for appellant in his brief, and upon the authorities cited by him, cannot be rendered applicable to the facts of this case.
Many cases are. cited and quoted from by way of illustrating the extent to which judgments are conclusive of matters beyond the point actually determined, Í. <?., beyond the main question in issue, in Bigelow on Estoppel, page 118 et seq.¡ sustaining, we think, the application we have made. In one of them, Caston v. Perry, 1 Bailey, 533, Mr.
"An estoppel extends beyond what appears on the face of the judgment, to every allegation which, having been made on the one side and denied on the other, was at issue and determined in the course of the proceedings. It not only establishes the case of the plaintiff, but disproves or negatives that of the defendant.” Freeman on Judg., 257.
“ It is not the object of the suit, the recovery, or fruits of the litigation alone that constitute the estoppel, but the facts put in issue' and found, upon which the recovery is based,— facts in issue as distinguished from the evidence in controversy.” Id., 257.
“ Every point which has been, either expressly or by necessary implication, in issue, which must necessarily have been decided in order to support the judgment or decree, is concluded.” Id., 257.
We cannot agree with -the interpretation placed by the appellant’s "counsel upon the record of the former suit, restricting thereby the issues or facts put in issue within the-limits his argument prescribes. He insists that the issue was, not whether the contract, as expressed in the certificate, had been made by defendants, and the percentage of earnings realized by the operation of the railroad, but whether another instrument (the trust conveyance), made contemporaneously with the certificate, provided that the
Maxims applicable to this proposition have been sufficiently quoted without further comment; the plaintiff, in the former suit upon the facts stated giving him a right to demand payment, alleged liability and prayed for judgment; upon that cause of action whatever would support or defeat it was involved, and would be concluded by a judgment, and its conclusiveness would not be limited by the consideration that the course of pleading involved one special matter of defense. The second suit is for the same cause of action, which, according to the argument, rests upon matter which, in effect, is a sufficient reply and answer to the matter set tip and relied on successfully b\r the defendants in the former suit, but which was not pleaded then by the plaintiff, and therefore was not involved. This matter, according to the plaintiff’s argument, forms not the plaintiff’s action, which is, indeed, the same in both suits, but are but auxiliary facts to support its successful maintenance in the way of replication to the defendants’ plea in a former suit. The plaintiff might have relied on and pleaded them in that suit; by his failure to do so, he has lost the benefit of the privilege to do so. But we do not, as we have before said, and cited from the answer to demonstrate the fact, construe the issues in the former suit as being so limited in range as it is contended they are by the appellant’s counsel; that matter, however, under the above-view of the subject, is not of special consequence to consider. It is sufficient that “a judgment is conclusive upon every matter actually and necessarily decided in the former suit, though not then directly the point in issue. If the facts involved in the second suit are so cardinal that without them the former decision cannot stand, they must now
We are of the opinion that the judgment should be affirmed, and shall award accordingly.