Ehle v. Bingham

7 Barb. 494 | N.Y. Sup. Ct. | 1849

By the Court, Edwards, J.

Since the decision which was made in the Duchess of Kingston's case, (20 Howell's State Trials, 538,) the judgment of a court of competent jurisdiction, directly upon the point, has been considered conclusive by way of plea in bar in another suit, where1 the' same matter is directly in question between the same parties. There has been some diversity of opinion whether it will have the same effect as evidence, when it is not pleaded. In the case before us the previous judgment, which is relied upon as a bar, was set up as such in the' notice attached to the defendant’s plea. Of course, then, there can be no question whether or not it was properly given in evidence* ;■ and it follows that the circuit judge was right in instructing the jury that it was Conclusive, provided the same matter was directly in question, and was passed upon in the former suit. (See Young v. Rummill, 2 Hill, 478.)

The' plaintiff, in the present action, claimed to recover damages for false and fraudulent representations on the sale of a quantity of sheep. The defendant pleaded what was intended as the general issue, and gave notice that he would insist upon, and prove by way of bar, that in a former suit brought by the defendant upon a promissory note made by the plaintiff and one Daniel Ehle, and given for tiie identical sheep mentioned in the plaintiff’s declaration, he gave, notice that he would prove, and that he attempted to prove by way of defence, the same matter which is set forth as the Cause of action here, and that a judgment was rendered for the plaintiff in that suit.

Upon the trial of this cause the' defendant introduced in evidence the record of the judgment in the former suit; and it appears from inspection that the sartfe matter in issue here was directly in question in that suit. It also appears from the testimony taken on the former trial, that evidence was given, or attempted to be given, in support of the defence which was then set up.-

It is said, however, on the part of the plaintiff, that in the former suit he introduced no witness on his part, and that therefore he should not be considered as- having' set up a defence. The bill of exceptions shows that he' introduced testimony, and although it was by an examination of the witness of his adversary, still that examination was in reference to new matter, which had been pleaded by way of defence, and had reference to the very point which is in issue here. We are not at liberty to say that the matter was not distinctly passed upop in the former suit, because the proof on the part of the defendants was insufficient. Neither can we take into consideration the fact which was urged on the argument, that the referee decided the suit before the defendants were prepared with all their proofs. If they were entitled to any benefit from such a consideration, they should have applied for relief in the former suit.

But, it was said that the defendants abandoned their defence before the referee made his report. The bill of exceptions shows no such fact. It shows that the defendants failed to establish their defence; not that they abandoned it.

It was also contended that the parties in the two suits were different. But it will be remembered that the former suit was upon a promissory note, which grew out of a transaction to which the plaintiff and defendant in this suit, alone were parties, and that the plaintiff in this suit put in a separate plea, and notice of matter personal to himself; and the mere fact that another person was sued with him ought not to deprive the defendant in this suit of the benefit of the former judgment.

It was further contended by the plaintiff’s counsel that it should have been submitted to the jury to determine whether the matter in issue in this suit had been passed upon in the former suit. It will be seen by reference to the bill of exceptions that there was no question upon the trial as to the identity of the matters in controversy in the two suits. The only ques-, tion was as to the effect which should be given to the fornrer judgment. In the case of Gardner v. Buckbee, (5 Cowen, 226,) which was relied upon by the plaintiff’s counsel, it did not appear from the record, whether the two cases were founded on the same, or a different state of facts; and one of the grounds on which the admissibility of the record in the former suit was objected to was, that the subject matter of the two suits was different. It also appears from that part of the opinion of the court which was relied upon on the argument, that there was a question as to the identity of the matters in controversy.

The conclusion, then, to which we have arrived is, that as the points in issue here, were also in issue, and were passed upon in the former suit, the judgment in that suit must be considered as conclusive; and that the circuit judge was right in so instructing the jury,

The motion for a new trial is denied.