Lightfoot v. Wilmot

23 Mo. App. 5 | Mo. Ct. App. | 1886

Ellison, J.

it From will be, noticed that the account in this suit was originally plaintiff’s, and that, after filing his mechanic’s lien thereon in the clerk’s office, he assigned it to M. A. Switzer ; that Switzer then brought suit on it, in connection with other demands, in which suit the present defendants were defendants ; and that he charged the work and labor was done at the instance and request of the present defendants ; that they answered to that action, denying the allegation that the work was done at their request. That, in that action, a judgment was rendered by agreement, which judgment likewise covered the demand here sued on. It will be further observed that this judgment was special, against the property, and not personal, and after it was rendered Switzer assigned the account back to plaintiff, who instituted this action for a personal judgment against defendants, in which he gives evidence tending to prove the work was done at the instance and request of defendants, as was alleged in the suit by Switzer.

There were other matters stated in the abstract presented by the parties, but the above summary is believed to be sufficient to dispose of the case. It is said in Hickerson v. City of Mexico (58 Mo. 61), that “when a number of issues are presented, the finding in any one of which will warrant the verdict and judgment, it is competent to show that the finding was upon one rather than another of these different issues. '* * * If it appears prima facie that a question has been adjudicated, it may be proved by parol testimony that such question was not, in fact, decided in the former suit. Where matters could have been proved in a former action, the presumption is that they were proved, but this presumption may be rebutted and overthrown.” Under the allegations in the petition of Switzer, to enforce a mechanic’s lien on this and other claims, it would have been competent to render judgment against defendants, personally, for the claim in this suit. They were not only shown, by those allegations, to be interested in the building sought to be charged, bat the work was alleged'' to have been done at their request. The result of that' action was a judgment not against them personally. It certainly would, then, appear prima facie that the question in this case was determined in that, and if plaintiff asserted to the contrary, he should have offered parol testimony to that effect. He has not done so, so far as is shown by the abstract not controverted by him.

That the judgment was by agreement, does not aid plaintiff. It is maintained by respectable authority that such judgment is deemed an absolute settlement of all matters in issue in the pleadings ; but that we need not and do not decide. It is, at least,- however, to be taken as of the same force and effect as if rendered by the court on the evidence received under the pleadings.

The judgment is reversed.

The other judges concur.