Lead Opinion
This suit wаs brought by appellant, Olga Y. Knight, as guardian of the estate of Mrs. O. E. Rogers, a lunatic, against appellees, W. T. Waggoner and Joe Terry, to recover certain land in Wilbarger and Wichita counties. The suit was filed in the district court of Wichita county on February 6, 1911, and is numbered 4043 on the docket of said court. In addition to the regular allegations of a suit in trespass to try title, plaintiff specifically sought to set aside a conveyance of said land made by the said Mrs. C. E. Rogers to Joe Terry, dated March 6, 1906, and a judgment of the district court of Wichita county dated January 31, 1907, rendpred in cause No. 3607, in favor of the said W. T. Waggoner and against the said Mrs. O. E. Rogers for said land and confirming said deed. Plaintiff alleged that the said Mrs. *691 O. E. Rogers liad been for a long time prior to tile sale of said land and up to tbe time of tbe trial of tbe present suit continuously insane; that sbe was incapable of making a valid contract for tbe sale of said property; that this fact was known to tbe said W. T. Waggoner and Joe Terry, but said persons, for the purpose of *procuring tbe title to said property for less than its true value, and in a manner not authorized by law, procured said conveyance from said insane person to be made to tbe said Terry upon an insufficient consideration; -that tbe said Terry was acting for the said W. T, Waggoner in such matter, and on tbe same date of conveyance from Mrs. Rogers conveyed said land to said Waggoner, who in fact paid tbe consideration therefor; that tbe said W. T. Waggoner on October 12, 1906, as a part of the said plan to acquire said land and to cover up tbe fraud by judicial sanction, instituted said suit No. 3607, and. procured judgment to be rendered therein; that the plaintiff in said suit fraudulently and falsely represented to tbe court that Mrs. Rogers was sane at tbe time of the conveyance by her, and that the sale was in all things fair; that upon said bearing L. H. Mathis was appointed guardian ad litem for Mrs. Rogers;, that be was disqualified from acting by reason of being interested in said stiit, and made no defense thеreto, but judgment was entered upon admissions made by the said guardian ad litem upon bearing of said cause. The plaintiff tendered to the defendant Waggoner the amount paid for said land. The defendant, in addition to exceptions .and general denial, pleaded res ad-judicata, setting up in detail in support of this plea tbe facts as we shall hereafter state them.
Upon trial the court instructed tbe jury peremptorily to find for tbe defendant; this charge being “founded upon bis conclusion that no testimony whatever has been introduced tending to raise the issue of fraud in the rendition of the judgment in cause No. 3607.” ■ .
Evidence was introduced upon the trial that would have warranted tbe jury in finding the following facts: Mrs. Rogers conveyed the land to Joe Terry by deed dated March 6, 1906. Terry on the same day conveyed the land to defendant Waggoner, who was in fact the purchaser from Mrs. Rogers. The deeds from Mrs. Rogers to Terry and from Terry to Waggoner were in the handwriting of L. H. Mathis, and the acknowledgment of Terry to the dеed made by him was taken by the said Mathis. The consideration from Waggoner was paid to Mathis for Mrs. Rogers, and he received a commission of $150 out of such proceeds. Mrs. Rogers was at this time, and had been for several years prior thereto, insane, and this fact was known to the defendant Ufaggoner. The land was worth from $5 to $10' more per acre than the price paid for it — $10 per ac-re. Mrs. Rogers, after the sale, did not vacate the premises, and on October 6, 1906, Waggoner filed suit, No. 3607, against her for the recovery of the land; the petition being in the regular form of trespass to try title. No mention of the insanity of the defendant was made in this pleading, but on January 23, 1907, plaintiff’s attorney suggested to the court that the defendant was insane; whereupon the court appointed U. OH. Mathis as guardian ad litem for Mrs. Rogers. Plaintiff’s attorney testified that he did not re■member that he suggested that Mathis be appointed, though he knew that such attorney had been representing Mrs. Rogers in certain transactions, and hе may have#done so. On January 31, 1907, said guardian ad litem filed an answer,' setting up the fact that the defendant still had on hand “the entire proceeds of the sale to Joe Terry, less certain small amounts actually used by her for the necessary expense incident to the consummation of the sale of said land” ; that the defendant at the time of the answer was of unsound mind as to certain subjects, and should not be intrusted with the exclusive possession of said money; that the sale of the land to Terry was a fair transaction; that the defendant, at the time, understood the nature and consequences of her act therein; that she had received the reasonable value of said land; and that it was to her best interests that said sale should be confirmed. In a supplemental petition replying to this answer plaintiff alleged that Joe Terry purchased the land, paying full value therefor in good faith, believing defendant was sane, and that after Terry procured the deed he sold the land to plaintiff. In this pleading а statement is made of the amount paid Mrs. Rogers and the disposition she had made of the same, and it appears therefrom that the “sum of $150 was paid to L. H. Mathis as a commission on the sale of said land, he acting as agent for the defendant.” Plaintiff again prayed that he recover the land, or in the alternative that he have judgment for the money paid defendant and it be decreed to be a lien on said land. On the trial of said cause the deeds from Mrs. Rogers and from Terry to Waggoner were introduced, and the guardian ad litem made a verbal statement, whether under oath or not does not appear, to substantially the same effect as made in the answer filed by him. No other evidence was introduced, and on January 31, 1907, judgment was entered in which it was found by the court:
That “Mrs. C. E. Rogers was sane at the time of the execution of the deed to Terry; that said sale was in all respects just and fair and free from any fraud, and was made in good faith by the said Terry, and that said land was sold for its full and fair value, аnd that it is for the best interest of the plaintiff (it is apparent that the use of the word ‘plaintiff’ here *692 instead of ‘defendant’ was the result of clerical error) that the said trade be not canceled.”
And upon such finding judgment was rendered for the plaintiff. Appellant was appointed guardian of the person and estate of Mrs. Rogers, who was at the same time adjudged to be a lunatic, in February, 1910.
The facts on which appellee founded his plea of res ad judicata are as follows: There was a mistake in the entry of judgment in cause No. S607, as rendered and entered on January 31, 19U7, the land being described therein as section 92, instead of section 2, the proper description. After the filing of this suit, No. 4043, plaintiff, in cause No. 3607, filed jL motion to correct said entry, serving notice of said motion on Mrs. Rogers, Ti. H. Miathis, guardian ad litem, in cause No. 3607, and on Mrs. Knight, the legal guardian of Mrs. Rogers. On the hearing of said motion the court appointed M. M. Hankins guardian ad litem to represent Mrs. Rogers in such matter. The guardian ad litem sо appointed and the appellant filed separate answers to said motion, though they were the same in substance. Following a general denial and plea of limitations, these answers set out in what is termed a “special answer” to said motion substantially the same facts as are alleged in the petition in this cause, and prayed that said deed and the judgment in cause No. 3007 be canceled and set aside, and that defendant recover title and possession of said land. In the answer filed by appellant the pendency of said cause No. 4043 was suggested, and the court was asked to consolidate the “suit to correct the judgment with said cause No. 4043.” These answers were filed on July 18 and 19, 1911. No reply to the answer was filed by the defendant. On hearing of the motion to correct judgment these answers, in so far as issues were presented by the special allegations referred to, were apparently ignored. The only evidence offered on the hearing of the motion was as to mistake in the entry .of the judgment, and on July 19, 1911, the court sustained the motion to correct the judgment in cause No. 3607, and entered an order to such effect. This order, among other things, recited:
“On this day came on to be heard by the court the motion hereinbefore filed by the plaintiff * * ⅝ to correct the entry upon the minutes of this court- of the judgment herein rendered on the 31st day of January, 1907, so that the entry upon the minutes of said judgment should conform to the judgment actually rendered by the court, * * ⅜ and the court, having heard said motion, the evidence introduced, the argument of counsel, and being fully advised as to the law, is of the opinion that said motion is -well taken and should be sustained. It is therefore ordered, adjudged, and decreed by the court that the entry of the judgment rendered herein ⅜ * ⅜ be corrected * * ⅜ so as to hereinafter read as follows.”
M. M. Hankins, as guardian ad litem for Mi’s. Rogers, appealed from “the action of the court in sustaining said motion,” and said action of the court was finally affirmed by the Supreme Court. Waggoner v. Rogers,
■ that she did not receive a fair price for the land, that plaintiff knew these facts, but pleaded the contrary; and took a judgment on conclusions by the court based on false information as to the facts, we are of the opinion that sufficient ground exists for relief against the judgment. Day v. Johnson,
We think it fair to the court trying said cause No. 3607 tо say that the guardian ad litem’s connection with the trade did not appear at -the time he was appointed, and thereafter appeared only incidentally in a sup *693 plemental petition filed by plaintiff, and may never have been'called to tbe court’s attention. It should also, in fairness, be added that tbe evidence as to tbe insanity of Mrs. Rogers and tbe value of tbe land is not un-controverted. Tbe evidence is sucb that tbe jury could have found tbat tbe sale and its confirmation was a fair transaction. We bave only detailed the evidence as it tended to support plaintiff’s right to bave tbe case submitted to'the juryl But good faith on tbe part of tbe attorney and the guardian ad litem -would not necessarily defeat tbe action. Sucb persons might be tbe innocent means of tbe perpetration of fraud by plaintiff.
We come then to ■ consider tbe questions presented by'the plea of res adjudicata. Two questions occur in tbe consideration of this defense: First, whether tbe judgment entered on the motion to correct judgment in cause No. 3607 is to be conclusively presumed to bave disposed of tbe issues presented in the appellant’s special answer to the motion; second, whether, independent of the answer or any judgment thereon, tbe appellant would be precluded from maintaining this suit because of failure to take any action by way of motion for new trial or appeal from the judgment in said cause No. 3607. An understanding of the respective rights of the parties as they existed af the time of the filing of the motion and the procedure by which such rights are to be enforced is, we think, essential to an answer to these questions.
“A proceeding of such character, whose only purpose is to have the judgment entry speak truly the judgment as rendered, neither asserts nor seeks the enforcement of any new right; it presents no issue between the parties except in respect to the accuracy of the record and otherwise involves the adjudication of nothing between them. It is powerless to reopen the controversy as closed and sealed by the judgment and makes no such attempt. The inquiry under it is not what judgment might or ought to have been rendered, but only what judgment was rеndered ; and such is the sole issue to be determined. If an amended or corrected entry be ordered, the status of the parties and their relative rights, as decreed and fixed by the judgment, remains untouched and unaltered, in no sense adjudicated anew, but only judicially evidenced as originally. determined.”
“These two cases [we interpolate the respective proceedings of the parties in this case] well illustrate the distinction which lies clearly defined between a suit to correct ⅛ judgment because of the mistake of the court in its rendition, whereby an improper judgment is rendered, but its entry is in accordance with the rendition, .and a proceeding to correct or supply the minutes of the court so as to have them truly recite the judgment actually rendered. To correct in the trial court, after adjournment of the term, a judgment as rendered, an independent action is necessary, as its jurisdiction of the case is at an end. In the latter instance the court may, at a subsequent term, of its own motion or upon the application of parties, order the proper entry because the inherent power that it possesses as a court over its own records endures for the sake of their verity.”
As to the second phase of this question, appellee contends that cause No. 3607 was still pending up to the time of the entry of the order correcting the record of the former judgment, and that appellee could have filed a motion for new trial raising all the issues presented in this suit, and could have appealed from the judgment on the merits in said cause, and that, since .such remedy by direct action in the cause in which the judgment was rendered was open, the court should not entertain a separate suit to set aside the judgment. If it be true that a motion for new trial as suggested could have been made, there might be some merit in this contention. The authorities referred to in our discussion of the first phase of this defense, if we have correctly understood them, would preclude the setting aside of the judgment rendered in 1907 on an ordinary motion for new trial (presented for summary action by the court, and not regarded as an independent suit) filed in July, 1911, on grounds that there was error in the judgment on the merits -of the case; to say the least of it, grave doubt would exist as to whether such method of procedure was open to appellant. We assume that appellant could have appealed from the judgment in cause No. 3607 after the corrected entry thereof. Palmo v. Slayden & Co.,
“Such relief * * * will not be administered when the party has an adequate remedy at law nor as a general rule when he has an opportunity to make a motion for a new trial at the term at which the judgment was rendered. * * * if relief against such a judgment is sought during the continuance of the term at which it is rendered, and there exists any circumstances making an application for new trial an insufficient or a less effective remedy than a separate suit would afford the party, upon alleging such facts ho should be allowed to proceed by separate suit ⅜ * * instead of being confined to a motion for new trial.”
For the reasons stated, the judgment will be reversed, and the cause remanded.
@=}For other oases see same topic and KEY-NUMBER in all "Key-Numbered Digests and Indexes
Addendum
I respectfully dissent from the holding of the majority in this case, and think the judgment should be affirmed, because I believe the plea of res judicata was sustained. After appellants filed their petition in the nature of a bill in equity in the district court of Wichita' county to set aside the original judgment in cause No. 3607 upon the ground that Mrs. Rogers was insane at the time of its rendition, and that it was procured through fraud,-Waggoner filed his motion in cause No. 3607 to have, by a judgment entered nunc pro tunc, the description of the land in said original judgment corrected. By their answer filed to that motion appellants presented the issue of fraud, and thereby met the effort of Waggoner to correct the original judgment with pleadings attacking its validity and praying that it be declared void. The first question to be considered is: Under the Texas practice, when a motion is made by plaintiff in a judgment to correct the judgment entry, and all parties have been duly served with notice of the motion, is it permissible for the defendant in the judgment to raise the issue of fraud in its rendition and ask that it be annulled, or must he bring a separate and independent action for that purpose? f There is no statute requiring a separate action in such cases, and we must look to general rules of procedure and practice for an answer. As stated in the majority opinion:
“The power to correct the records exists in the court, not by reason of its continued jurisdiction over the subject-mattеr, but by virtue of its continuing power over its records.”
The quotation is from Hickey v. Behrens,
“The rule against multiplicity of suits has peculiar force in our system of procedure. Within reasonable limits it is the cardinal principle as to joinder of parties and causes of action. Even jurisdictions which are distinct and separate in other states are blended in our system; legal and equitable causes of action and grounds of defense may be adjusted in a single controversy.” Clegg v. Varnell,18 Tex. 304 ; Herring v. Mason,17 Tex. Civ. App. 559 ,43 S. W. 797 .
A few illustrations showing the practical application of the policy by the courts may not be amiss. In the case of Blair v. Gay,
“Administrators of a deceased lunatic obtained in the probate court * ⅜ ⅜ a decree for money against a former guardian of the lunatic’s property; and afterwards, but within two years, they brought suit in the district court on the guardian’s bond to recover the amount of the decree from the guardian and his sureties. The defеndants answered that the decree was rendered without any appearance or answer by the guardian, that the guardian was not indebted to the estate, that the decree was based on Confederate money collected by the guardian from an insolvent debtor of the lunatic, and that the guardian was entitled to credits not allowed him in the decree; and they filed a transcript of the proceedings of the probate court, and prayed that its decree be revised and corrected. Held, that this line of defense was competent, the two years - allowed by article 3922, Pas. Dig., for the revision by the district court of the probate court’s decree being ufiexpired, and it being immaterial in what manner the appearance of the parties was obtained in the district court. A policy pervades our whole system of jurisprudence, which requires parties to settle all their controversies in a single suit, if practical.”
In the following cases the attack was made on the judgment by cross-bill, and not by an independent action: Clevenger v. Mayfield,
- In response to plaintiff’s motion for a new trial, where defendant for whom a general verdict ■ had been directed admitted certain indebtedness, the court may give plaintiff judgment, and without aid of a jury. Alabama Oil & Pipe Line Co. v. Sun Co.,
. The majority opinion quotes from Milam County v. Robertson,
I am in tuneful accord with my Brethren and the opinions from which they quote sustaining their pronouncement that the only purpose of a motion to correct a judgment is to have the judgment entry speak truly the decree as rendered; that, considered alone, it presents no issue between the parties except in respect to the accuracy of the record; that it is powerless to reopen the controversy as closed and sealed by the judgment; and that it makes no such dttempt. I have-no quarrel with that doctrine, and but for the cross-action of appellants in the instant case I would not be dissenting. The answers and cross-actions had the effect of presenting affirmatively the issue of fraud in the rendition of the judgment in addition to the issue of inaccuracy in its entry ■ as presented by the motion, and was in no sense a motion for new trial or to set aside a judgment by default, and does not come within the rule announced in the Hester and Eddleman Cases cited in the majority opinion. It is true that the effect of the answer was to inject issues upon which either party was entitled to a regular trial before a jury, but none was demanded, and they had a right to try before the court if they preferred to do so. Answers of defendants in which affirmative demands are made, pleas in reeonvention, set-offs, counterclaims, cross-actions, cross-bills, in-terpleaders, actions for cancellation, reformation, and many other forms of relief are too numerous along the well-beaten highway of court procedure in Texas and too familiar to require even a reference to any оf the multitude of cases where the right of the defendant to any and all such affirmative relief *697 was not only recognized, but was not questioned. In all such cases the relief sought by the answer might have and frequently has been claimed by an independent action in which the defendant would have, been the plaintiff. In the majority opinion it is said:
“We do'not mean to say that, if the appellees had answered the issues tendered in appellant’s answer to the motion, and the court had actually heard and decided the issues thus made and rendered judgment thereon, we would not consider the matter as being finally disposed of. In such case, under our liberal system of practice, the proceeding and judgment thereon might properly be regarded as a proceeding in an independent action, though it was filed in and took the number and style of the original suit. But the filing of the pleading as a motion, or an answer to a motion, or as a cross-action in the original case, would not destroy its nature, and this brings us back to thе first question as to whether it is to be implied that this independent action is disposed of by the entry of an order on the motion in the case proper to correct the judgment. We think,not.”
I think the issue was squarely before the court, and. that the judgment by implication disposed of it. If so, the question of fraud is res judicata.
It was not necessary for Waggoner to file a formal general denial, or any other reply to the cross-action of appellants. His motion was sufficient. The rule announced in Hunt v. Makemson,
Up tо this point the case is in this condition: (1) In reply to Waggoner’s motion to correct appellants filed their cross-bill to amend; (2) the parties have all appeared and are before the court; (3) the issues are sharply drawn in the pleadings on file and unob-jected to; (4) a judgment is entered overruling appellant’s exceptions to the motion and granting the prayer of the movant, but saying nothing at all about the cross-action. The final question now is: Does such,a judgment, rendered under such circumstances, by implication dispose of the issue of fraud presented by the cross-action? I think it does. Appellants appealed from that judgment, but, it seems, in their appeal questioned only the right of Waggoner to amend the judgment on the ground of limitations. See Waggoner v. Rogers,
“(2) The controlling issue here, as this case is presented to us, is: Was the judgment in question final? If final, the appeal of plaintiffs in error should have been entertained by the Court of Civil Appeals; if not final, the action of that court dismissing said appeal must be sustained. Upon that issue there have long been in this state two well-defined and sharply conflicting lines of decisions by Courts of Civil Appeals. Such conflict arises particularly, it seems, upon the construction given to article 1994, R. S. 1911, relating to the form of judgments of district and county courts; those Courts of Civil Appeals who adhere to a strict rule of construction in the premises holding that a judgment which does not in express terms specifically dispose of a cross-action or counterclaim is not a final judgment, such as will support an appeal, and those adhering to a more liberal rule of construction holding that a judgment may be final even though it disposes of such cross-action or counterclaim by necessary implication only, without expressly mentioning it. Said statute is as follows: ‘Art. 1994. (1335). The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.’ ”
After referring to a number of decisions by certain Courts of Civil Appeals, showing the conflict and discussing several decisions of the Supreme Court, Judge Hawkins proceeds :
“In Rackley v. Fowlkes,89 Tex. 613 ,36 S. W. 77 , this court held: ‘The proposition seems to be sound in principle and well supported by authority that,, where the pleadings and judgment in evidence show that the pleadings upon which the-trial was had put in issue plaintiff’s right to recover upon two causes of action, the *698 judgment awards him a recovery upon one, but is silent as to the other, such judgment is prima facie an adjudication that he was not entitled to recover upon such other cause.’
“Davies v. Thomson,92 Tex. 391 ,49 S. W. 215 , was a suit by the heirs of Thomson, deceаsed, against the heirs and administrators of Davies, deceased, for recovery of one-half of certain real and personal property held and controlled by Davies at the time of his death, and one-half of all increase and gains in said property since his death, and one-half of all money received from sales of any of said property since that time. If the allegations of the petition were true, plaintiffs were entitled to recover everything sued for by them. The jury found simply: ‘Por the plaintiffs in the sum of $14,-000.’ The court entered judgment accordingly. Upon appeal, this question was certified to this court: ‘Is the judgment a final judgment from which an appeal may be taken? The contention is that the verdict and judgment should have in terms made some disposition of the real estate.’ In answering said question this court quoted approvingly the foregoing excerpt' from its opinion in the Backley Case, and added: ‘The proposition there announced was directly involved in the decision of that case and is decisive of the question certified. The judgment, in our opinion, should be construed to mean that the plaintiffs recover of the defendants the sum of $14,000 and costs, and that they are to take nothing more either in the property claimed or in money. We answered the question in the affirmative.’
“The principle which controlled the last-mentioned two cases is, we think, applicable in great measure to this case. The rule is thus stated in Freeman on Judgments, § 279, and note 1: ‘There is no doubt that, if a set-off is presented by 'defendant in his pleadings, attempted to be supported by evidence to the jury,, it will, whether allowed or disallowed, become res judi-cata. It is settled by the judgment as conclusively, when it does not appear to have been allowed, as though there were an express finding against it’ ” — citing authorities.
A further clear and emphatic decision by the Supreme Court, which in my-judgment is conclusive of this appeal, is in the case of Hermann v. Allen,
“One of the questions before us arises upon Hermann's plea of res judicata, based on the judgment in the former case. In that action Allen pleaded in reconvention his right to the house, the wrongfulness of the injunction, and damages suffered by him from the service of it upon him. That cause was tried in the district court on its merits, with such plea before the court, and judgment was rendered in favor of the plaintiff therein perpetuating the injunction. Wo shall assume that the statement of the Court of Civil Appeals that no evidence was offered to show the damages sustained by Allen is correct, although it is questioned by plaintiff in error. Upon Allen’s appeal from that judgment the Court of Civil Appeals reversed it ([44 Tex. Civ. App. 125 ]97 S. W. 1063 ), and, proceeding to render such judgment as the trial court should hаve rendered, adjudged that the injunction be dissolved, that the plaintiffs take nothing by their action, and that defendants recover all costs of suit. Nothing was said in either judgment of the plea in reconvention for damages. In the present case the district court and the Court of Civil Appeals (118 S. W. 794 ) overruled the contention of plaintiff in error that the claim for damages was adjudicated by the former judgment. The former judgment of the Court of Civil Appeals is the one upon which the question must depend, since that court set aside the judgment of the trial court and substituted its own as the final disposition of the entire cause. It is of the same effect as if it had been rendered by the district court at the end of the trial and no appeal had been taken. Necessarily being the final judgment, it disposed finally of all the issues pending in the cause when it was rendered determining all the rights of the parties in issue therein and' becoming; the measure of the relief to which they were 'entitled. The pleadings certainly put in issue: (1) The right of the defendant therein to move the house; and (2) the right of Allen to recover damages caused by Hermann’s interference with that right. The judgment determined the first in his favor, saying nothing about the second. This was necessarily an adjudication that that which was given was all that he had shown himself to be entitled to. The necessary legal effect of the failure to award damages for which a claim was pending in the pleadings was a denial of the right to them. This does not mean that it appears the court actually made a decision upon the plea in reconvention. The record does not show whether that was done or not. The proposition is that the necessary legal effect of a final judgment is to determine finally a cause of action set up in the pleadings and pending for decision in the cause when that judgment is pronounced, unless, indeed, the court exclude it from the scope of its action; and this whether the judgment result from actual decision or oversight of the court. That which is adjudged is the decisiоn of the court that it is all the parties are entitled to. In determining the effect of a judgment it sometimes is important to inquire whether or not the particular question or issue was tried and decided -in the cause in which the judgment was rendered. That is true although ⅜ * * the cause of action is not the same in the second as that decided in the first action; it is claimed that a party to the second is estopped upon a question given to both which was decided in the first. Nichols v. Dibbrell,61 Tex. 541 ; Hamrick v. Gurley,93 Tex. 480 ,54 S. W. 347 ,55 S. W. 119 ,56 S. W. 330 , and authorities cited. Such an inquiry is out of place 'where the cause of action is the same in the two causes and a final judgment on the merits has been rendered in the first. Of course, we do not hold that the defendant is bound to plead in reconvention his damages In such an action, or that, having'- done so, he he must prosecute his plea to final judgment. .We may fully concede his right entirely to withhold such a claim, and to await the termination *699 of tlie cause, or, if he has filed a plea in re-convention, to withdraw or discontinue it beforе trial and in either case, after the termination of that litigation, to bring his independent action for damages sustained. But we cannot concede that he can go to trial and submit his cause for decision upon pleadings raising such an issue, and afterwards be heard to say that it was not involved in the final judgment merely because he introduced no evidence to sustain it and no mention was made of it. The • absence of evidence constitutes the best of reasons for denying it; the failure to sustain it is a denial of it.
“In the case of Flippen et al. v. Dixon,83 Tex. 421 ,18 S. W. 803 ,29 Am. St. Rep. 653 , a writ of sequestration was sued out and levied, 'and the defendant Claimed in reconvention thei damages caused thereby. At the trial he adduced evidence in support of his claim, but the judgment made no reference to it in submitting the cause to the jury on special issues. Judgment was rendered in the defendant’s favor which said nothing of his claim for damages, and another suit was then brought by him to recover them. This court held that he was precluded by the judgment. It will be seen that the only fact which could be urged to distinguish that case from this is that Dixon adduced evidence to support his claim, which Allen did not. That a mere failure to adduce evidence of a claim put in issue by pleadings cannot be urged to limit the effect of the judgment, if authority were needed fop so plain a proposition, is settled by the decisions of this court. Fish v. Miller,20 Tex. 582 ; Roberts v. Johnson,48 Tex. 137 .
“The difference between a judgment in a case like this, where a right or claim is pleaded and in issue, when a judgment is rendered, and one in which, though existing, it is not set up and is separable from the cause of action which is pleaded, is illustrated by the decision in Roberts v. Johnson, supra, Flippen v. Dixon, supra, and Johnson v. Murphy,17 Tex. 216 , the first class, and McAlpine v. Burnett,19 Tex. 500 , Ball v. Hill,48 Tex. 634 , Waldrom v. Zacharie,54 Tex. 504 , and Kempner v. Comer,73 Tex. 201 ,11 S. W. 194 , the second class. The reason for this difference is that a judgment is logically to be taken as disposing of all the issues pending for decision under the pleadings in the cause, unless the court exclude some of them from the effect of the adjudication, an exception made by other decisions. Converse v. Davis,90 Tex. 462 ,39 S. W. 277 ; Groesbeck v. Crow,91 Tex. 74 ,40 S. W. 1028 ; Teal v. Terrell,48 Tex. 508 ; Williams v. Wiley,96 Tex. 152 ,71 S. W. 12 . The trial court therefore erred in this case in refusing to instruct that the former judgment precluded a recovery by plaintiff herein of any damages which accrued prior to the time of its rendition.”
Many authorities from other jurisdictions might be cited announcing the same doctrine, but the question seems to be so well settled in this state by our own decisions cited above and the following that I deem it unnecessary to further discuss the question or prolong the opinion by quoting from any of them. See Stockwell v. Melbern,
I think the judgment should be affirmed.