148 So. 702 | La. | 1933
On March 4, 1927, plaintiff filed its suit against these defendants in the First judicial district court, parish of Caddo, under the number 45105 of its docket.
On June 25, 1927, that suit was dismissed on an exception of no cause of action.
On June 25, 1928, exactly one year afterwards, plaintiff took a devolutive appeal to this court, which appeal was lodged in this court under No. 29467 of its docket; and judgment was therein rendered on said appeal which became final on May 5, 1930. See Exchange National Bank v. Holloman Bros. et al.,
Petitioner shows in the alternative, and only in the event that the court should find that the said act of guaranty executed by Kennedy-Denny Company, Incorporated, in favor of petitioner, does not indemnify petitioner against loss on the notes herein sued upon, then, that said act of guaranty is in error in not so providing; that it was the intention and agreement between all parties to said instrument at the time it was executed to indemnify petitioner against loss on the said notes; that James A. Denny was named to draw said instrument in accordance with said agreement; that in reducing said agreement to writing said James A. Denny omitted to express the true intent and agreement between the parties; and that said agreement should be reformed so as to conform therewith.
And, after praying for exactly the same relief asked for in suit No. 45105 (our No. 29467), this alternative prayer is added, *541
Petitioner prays in the alternative, and only in the event that the court should hold that the said act of guaranty does not indemnify petitioner against loss on the aforesaid notes sued on, then that said act of guaranty be reformed to so indemnify petitioner, and that petitioner have judgment as prayed for above.
We think a final judgment in No. 45105 (our No. 29467) would be res judicata as to No. 47073 (our No. 31996).
As we have said, the parties are the same, the thing demanded is the same; the cause of action in both cases is again the continuing guaranty, with this difference only, that in the first case the continuing guaranty is relied on as written, whilst in the second case the continuing guaranty is first relied upon as written with an alternative prayer that, if insufficient as written, it be reformed so as to make it sufficient. But this relief was open and available to plaintiff in the first case as well as in the last. It was, after all, only an amplification and elaboration of the real cause of action, which was the original continuing guaranty. *542
But, even if this last be considered a separate and distinct cause of action from the first, the two causes of action were both open and available to the plaintiff when it filed the first suit as well as when it filed the second.
But the jurisprudence is that:
A final judgment of a court having jurisdiction over the parties and the subject-matter puts an end, not only to every plea or defense made, but to every plea or defense which either of the parties might successfully have made. Succession of Whitner,
In other words:
A litigation is not conclusive as against those who are not parties to it, nor as to rights not possessed by the litigants at the time, save as to persons who are the privies of each other. But a party litigant, whether plaintiff or defendant, is bound to set up whatever title or defense may be at his command or within his knowledge, and is not at liberty to reserve what be pleases and make it the basis of a new litigation. Gajan v. Patout
Burguieres,
We are therefore of opinion that the trial court was correct in sustaining the defendant's plea of lis pendens.