Ogden v. Chicago, Rock Island & Pacific Railway Co., 131 Mo. App. 331

Ogden v. Chicago, Rock Island & Pacific Railway Co.

131 Mo. App. 331 | Mo. Ct. App. | 1908

BROADDUS, P. J.

There are certain matters which appear on- the face of the record proper which are sufficient for the purpose of determining the sole question in the case; viz., res adjudicata. The present action is for negligence in not keeping the bed of the stream unobstructed. The difference is a mere matter of detail, and all that is stated in the present suit was a matter properly for adjudication in the first case. The cause of negligence in both are the alleged acts of defendant in obstructing the flow of water that accumulated on the bottoms and in the stream itself.

The former judgment of the court is a bar to the present action. The law is that a former adjudication applies not only as to the question upon which the court *336rendered judgment, but to every question which was a part of the subject matter in dispute, and which the parties might have litigated at the time. Or as expressed in Donnell v. Wright, 147 Mo. 639: “All the issues, which might have been raised and litigated in any case, are as completely barred by the final decree, as if they had been directly adjudicated in the verdict.” This court in Pond v. Huling, 125 Mo. App. 474, and Hingston v. Montgomery, 121 Mo. App. 451, in passing upon the question held likewise. And so was the holding in Garland v. Smith, 164 Mo. 1. In the latter case the conrt said: “Where the purpose and object of the former action are the same with the late action, it is not to be questioned that the judgment concludes everything which might have been brought forward, although not in fact pleaded or in evidence, but when the subsequent action is upon a different claim, the former judgment only bars those things which were in issue or included in issue in the former action.”

The plaintiff bases his argument upon the theory that his action is for a different claim and therefore the former judgment is not a bar. But his argument assumes as a basis that which does not exist. It was a part in the detail of his former action, and relates to things which properly could have been litigated in that action. We do not think it can be successfully contradicted that the claim in suit could not have been properly litigated as it belonged to the subject of the litigation, and which the parties by reasonable diligence might have brought fomvard at the time. [Summet v. City Realty & Brokerage Co., 208 Mo. 501, 106 S. W. 614; Hingston v. Montgomery, supra.] The law as stated has been so held in this State in many previous decisions; viz., Railroad v. Levy, 17 Mo. App. 501; Hotel Association v. Parker, 58 Mo. 327; Greenabaum v. Elliott, 60 Mo. 25; Lyman v. Harvester Co., 68 Mo. 637; Hamilton v. McLean, 169 Mo. 51.

*337Upon the face of the record the judgment should have been for the defendant. Eeversed.

All concur.