Girardin v. Dean
49 Tex. 243
Tex.
1878
Check Treatment
Moore, Associate Justice.

Thе court did not err in overruling the plaintiffs’ exceptions to defendant’s plea of res adjudícala, as to such of the рlaintiffs as were parties to the former suit. It is plainly apparent from the answer, and exhibits attachеd to and made a part of it, that the subject-matter of this suit is identical with one of the issues in the former aсtion. In this case, just as in the former suit, the plaintiffs allege that the tax' of one-eighth of one per cеnt, on the assessed value of the taxable property situated and owned in Galveston county, for the year 1875, which the defendant was about collecting, had not been legally levied by the County Court, and that thе defendant had no legal authority to collect and enforce payment of said pretended tax. The relief sought in both cases is precisely ‍‌‌‌‌‌​‌​​​‌‌​‌‌​‌​​‌‌‌​‌‌​​‌‌‌​​​​‌‌​​‌‌​​​​‌‌‌​‍the same. It is of no consequence, if the reasons urged to sustain the issue presented in this suit may not be precisely those relied upon, or in the mind of the pleader, when framing the petition in the first case. The applicability of the plea depends upоn the identity of the cause of action or matter of defense in issue, and not the identity or similarity of the рoints or grounds urged to support or maintain ihe action or matter of defense; otherwise litigation would only end when the ingenuity of counsel could not suggest additional grounds in support of the issue, though the gist of the issuе may have been more than once considered and decided by the court. Cases cannot bе thus pre*247sented and determined by piecemeal. All the matters involved in the issue determined by the court are as fully concluded by the judgment as those considered and discussed, if the matter put in issue has been detеrmined by the court upon the merits. (Rogers v. Higgins, 57 Ill., 244; Chesapeake Co. v. Gittings, 36 Md., 276; Phelan v. Gardner, 43 Cal., 306; Shepardson v. Cary, 29 Wis., 34; Burford v. Kersey, 48 Miss., 643.)

The fact that parties in the first suit are not identically the same as those in the second, when the first case was decided on the merits, and not upon an exception to joinder or nonjoinder ‍‌‌‌‌‌​‌​​​‌‌​‌‌​‌​​‌‌‌​‌‌​​‌‌‌​​​​‌‌​​‌‌​​​​‌‌‌​‍of parties, is certainly no answer to the plea; otherwise, no mattеr how often a case be decided, the parties might renew the litigation by simply joining with them a new party.

But аlthough the plea may be good in law, it is of no avail, as a defense, unless its material averments arе found to be true by the jury or the court, when, by consent of parties, the issues of fact are submitted to its determination. It is, therefore, necessary for us to consider whether the facts alleged in this plea havе been proved so as to warrant the court in pronouncing a judgment upon the hypothesis that the truth оf its averments have been established.

Appellee’s answers presented but two issues of ‍‌‌‌‌‌​‌​​​‌‌​‌‌​‌​​‌‌‌​‌‌​​‌‌‌​​​​‌‌​​‌‌​​​​‌‌‌​‍fact, viz.: 1. The allegations in the plea of res adjudicóla; and 2. The denial of the averments in the petition. The judgment does not, in direct and explicit terms, state the finding of the court on these issues. It is of no moment that it should. An inspeсtion of the record clearly shows, that if the court passed* upon the plea of res adjudicata, it must, or should, havе found for appellee. ‍‌‌‌‌‌​‌​​​‌‌​‌‌​‌​​‌‌‌​‌‌​​‌‌‌​​​​‌‌​​‌‌​​​​‌‌‌​‍Its essential facts were, prima facie at least, established by the record of the fоrmer suit; and no rebutting evidence whatever was adduced by appellants. A contrary finding would have been not only unsupported by, but in direct and palpable conflict with, all the evidence in the case. Taking it for granted, as we think we must, that the court found the allegations of the plea to be true, what should *248have been its judgment ? We answer, the dismissal of the case; for it is-obvious, from the facts alleged in appellants’ petition, that the aggregate amount of taxes for which appellants could litigate, after thе determination of the former suit, was not sufficient to give this court jurisdiction of the cause. But if it was admitted that ‍‌‌‌‌‌​‌​​​‌‌​‌‌​‌​​‌‌‌​‌‌​​‌‌‌​​​​‌‌​​‌‌​​​​‌‌‌​‍thе court did not find for appellee upon the plea, but upon the general denial, notwithstanding . the statement of facts says appellants “ proved all the allegations set forth in their petition to be true,” we would he constrained to hold, as the question goes to the jurisdiction of the court, that it erred in nоt finding the plea of res adjudicate to be true; and whatever may have been its determination on the issue raised by the gеneral denial, the case should have been dismissed.

We do not say that this would be the effect of the finding, if the taxes of the plaintiffs who were not parties to the former suit amounted in the aggregate to the sum of five hundred dollars; for we see no good reason why, under our lib- ' eral system of procedure, the parties bound by the former judgment should not be dismissed, and those who were not thus bound should not be permitted to proceed, if the court, notwithstanding the dismissal of the parties bound by the former judgment, still had jurisdiction of the case. If, hоwever, the legal effect of .the verdict or finding upon the plea leaves the court without jurisdictiоn to hear and determine the merits, it must be dismissed as to all parties. (Bonner v. Watson, 6 Tex., 172.)

It follows, from what has been said, thаt the court erred in considering and determining the case upon its merits, and 1 awarding damages; and, for this error, the judgment is reversed and the cause remanded to the District Court,- that such action in it maybe there taken as the law bearing upon the tacts, as they may be then and there exhibited, authorize and require.

Reversed and remanded.