73 Mo. 274 | Mo. | 1880
I.
Numerous decisions of this court attest that final settlements made in probate courts by curators and others acting in similar capacity, occupy the same footing to all intents and purposes as do the judgments of other courts of competent jurisdiction.
The Supreme Court of the United States holds “that the judgment of a court of law or a decree of a court of equity directly upon the same point aud between the same parties is good as a plea in bar and conclusive when given in evidence in a subsequent suit.” Thompson v. Roberts, 24 How. 233; Smith v. Kernochen, 7 How. 198. In the instance cited the former adjudication was not pleaded but simply offered in evidence. The same rule is laid down in Maryland as to the conclusive effect of a judgment upon the merits between the'same parties in a former suit relating to the same cause of action,'whether such, judgment be pleaded in bar or adduced in evidence under the general
In the case at bar the money sued for was alleged in the petition to have been received by defendant from Mc-Coi’mick in September and October, 1872, and the testimony offered on behalf of plaintiffs fully supports that allegation as to the time of the reception of the money and from whom received. The final settlement offered in evidence was .made in March, 1873, and fully accounts for the McCormick note. Upon the principle heretofore announced, that settlement must be regarded as conclusive of the rights of the parties to re-agitate the question then and there adjudicated, at least in this form of action, and that it is quite immaterial, so far as concerns the result, whether such adjudication be formally pleaded, or, as supporting the general issue, be offered in evidence.
II.
There is another view of this case which is equally fatal to plaintiffs’ suit: There either has been a final settlement of the ward’s estate or there has not. If there has, the foregoing considerations apply. If there has not, thén the curatorship is still open and the defendant curator is not, liable to an ordinary action for money had and received, but resort must be had to a suit on his bond which constitutes the measure and limit of his liability.