104 Fla. 606 | Fla. | 1932
This was an action upon promissory notes for a deficiency after foreclosure suit. The pleas of res judicata set up the former foreclosure proceedings as a defense. These proceedings were reviewed by this court in Mabson v. Christ,
It thus appears that the decision of this court on the former appeal was based upon the finding that the right to a deficiency decree had not been adjudicated in the foreclosure proceeding, and that therefore the attempt to adjudicate that question after the foreclosure proceeding had terminated and the final decree and decree of confirmation had become absolute, was void and of no effect. *608
The general rule is that a judgment on the merits, rendered in a former suit between the same parties or their privies, on the same cause of action, by a court of competent jurisdiction, operates as an estoppel, not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action. However, this general rule does not mean that the prior judgment is necessarily conclusive of matters not in issue or adjudicated, and which were not germane to, implied in, or essentially connected with, the actual issues upon which the case was tried, although they may affect the ultimate rights of the parties and might have been presented and tried in the former action. Neither is the rule applicable to issues, the trial of which rests within the discretion of the court, where that discretion was not exercised. See 34 C. J. 823.
In the case of Woodward v. Dishong,
In Taylor v. Prine,
As no application was made for a deficiency decree in the foreclosure suit after the sale was had and the chancery court never exercised nor attempted to exercise its discretionary power to adjudicate the question as to whether or not the complainant was entitled to a deficiency decree until after its jurisdiction of the cause had terminated, the pleas of res judicata were insufficient, and the court below was without error in sustaining the demurrer thereto. See Day vs. Weadock, decided at this term, opinion filed February 17, 1932.
Rehearing denied.
BUFORD, C.J., AND WHITFIELD, ELLIS, TERRELL AND DAVIS, J.J., concur.