Poorman v. Mitchell, 48 Mo. 45

Poorman v. Mitchell

48 Mo. 45 | Mo. | 1871

Currier, Judge,

delivered the opinion of the court.

This suit was founded upon an Ohio judgment. The defendant avers that the judgment is not binding'on him because of the existence of certain facts which are set out in the answer. The plaintiff replied, first traversing the allegations of the answer, and then averring specially that, in conformity with the practice and laws of Ohio, the defendant, on the 26th of October, 1867 (this suit being then pending), filed his petition in the court in Ohio, where the original judgment was rendered, setting forth the several matters contained in his answer, and praying that the judgment might be set aside and the petitioner (the present defendant) allowed to make his defense. The present plaintiff was made a party defendant, and filed his answer traversing the allegations of the petition in that proceeding. The case was tried, and the issues were found against the petitioner (the present defendant), and his petition was dismissed.

On the trial of the suit now before the court, transcripts of the Ohio records were read in evidence against the defendant’s objection. The Ohio statutes referred to were also read in evidence. The trial was by the court. No declarations of law were asked or given. The court found for the plaintiff, and the defendant appeals.

There is but a single question in the case, namely, whether the facts alleged in the defendant’s answer were adjudicated before the Ohio court, where the judgment sued on was rendered. After the defendant was sued here he petitioned the court in Ohio to set aside the judgment upon which he was sued, alleging as *47grounds for the application the same facts set out in his answer here. It is not questioned but that the Ohio court, under the laws of that State, had jurisdiction of the subject-matter of the defendant’s petition, and authority to modify,' vacate or set aside the judgment complained of. The defendant chose his own forum, brought in his antagonist, made up the issues, tried his cause, and judgment went against him.

The parties and subject-matter are identical in the two proceedings. The Ohio court had jurisdiction, and it seems to me that this presents a plain case of res adjudicata. (2 Sto. Eq., §§ 889, 902.)

There is no force in the objection that the proceedings in Ohio upon the defendant’s petition were subsequent to the commencement of this suit'. They were prior to its termination, and were duly brought upon the record here by the pleadings and evidence.

The judgment will be affirmed.

The other judges concur.