| Ill. | Sep 15, 1870
delivered the opinion of the Court:
The principal question in this case is, whether any, and if so, what, effect should have been given to the judgment or decree of the Milwaukee circuit court, rendered after the issues were closed in the court below, and introduced in evidence. The same matter was directly in issue in the two cases. There can be no objection on account of parties, for the wife is not to be deemed a party to this suit, so far as it relates to this mortgage. She was a necessary and proper party as to one of the other mortgages. But not having acknowledged the mortgage in question, as required by law, and that appearing upon the face of the bill, she is no more a necessary or proper party to a bill to foreclose it, than if her name did not appear to it at all.
The rules of law as to the conclusiveness of judgments and' decrees, are, it is said, founded upon these evident principles or axioms: that it is for the interest of the community that a limit should be prescribed to litigation, and that the same cause of action ought not to be brought twice to a final determination. Justice requires that every cause be once fairly and impartially tried, but the public tranquility demands that, having been once so tried, all litigation of that question, and between those parties, should be closed forever. 1 Greenlf. Ev. sec. 522.
The general rule on this subject which has been adopted without qualification, is that laid down by Lord Chief Justice DeGrey, in the Duchess of Kingston’s case, 20 How. St. Tr. 538 : “ From the variety of cases,” said he, “relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true : first, that the judgment of a court of concurrent jurisdiction directly upon the point, is, as a plea, a bar; or, as evidence, conclusive between the same parties upon the same matter directly in question in another court.”
We said, adopted without qualification. There is one that has been recognized by many courts, but which seems to impinge, upon the principle upon which the rule itself is based. It is to the effect that if a party have an opportunity to set up the judgment by pleading it, and he does not, then it is evidence, but not conclusive, and this upon the ground that a party may waive the benefit of an estoppel, and that he is held to have elected to waive it by not pleading it when he has an opportunity of doing so. 2 Smith Lead. Cases, 445, and cases there cited.
Mr. Greenleaf, speaking of this waiver, says: “ This proposition is admitted in its application to estoppels arising from an act of the party himself in making a deed, or the like, but it has been denied in its application to judgments recovered; for, it is said, the estoppel in the former case is allowed for the benefit of the other party, which he may waive, but the whole community have an interest in holding the parties conclusively bound by the result of their own litigation. And it has been well remarked that it appears inconsistent that the authority of a res judicata should govern the court when the matter is referred to them by pleading, but that a jury should be at liberty altogether to disregard it, when the matter is referred to them in evidence, and that the operation of so important a principle should be left to depend upon the technical forms of pleading in particular actions, and notwithstanding there are many respectable opposing decisions, the weight of authority, at least in the United States, is believed to be in favor of the position, that where a former recovery is given in evidence, it is equally conclusive, in its effect, as if it were specially pleaded by way of estoppel.” 1 Greelf. Ev. sec. 531 and note 5.
But the authorities all agree that when there has been no opportunity to ' plead a matter of estoppel, in bar, and it is offered in evidence, it is equally conclusive as if it had been pleaded. Wright v. Butler, 6 Wend. 284" date_filed="1830-12-15" court="None" case_name="Wright v. Butler">6 Wend. 284; Magrath v. Hardy, 4 Bing. N. C. 782; Howard v. Mitchell, 14 Mass. 241" date_filed="1817-07-15" court="Mass." case_name="Howard v. Mitchell">14 Mass. 241; Adams v. Barnes, 17 Mass. 365; Trevivan v. Lawrence, 1 Salk. 276 ; Gray et al. v. Gillilan et al. 15. Ill. 454.
In Dow et al. v. McMichael, 6 Paige R. 139, the defendant set up certain matters of defense by his answer. The complainant gave in evidence the record of a judgment at law upon the same matter, without pleading it. The chancellor held that inasmuch as general replications only were allowed, and complainant had no opportunity of pleading the judgment as an'estoppel, it should, as evidence, have the same effect.
In the present case, the judgment in the Milwaukee circuit court was not rendered until long after this cause was at issue in the court below, and therefore appellants had no opportunity, in the course of the pleadings, to plead it as an estoppel. And if the distinction rests upon the doctrine of waiver, by failing to set it up, when there was opportunity to do so, would it not be carrying the doctrine to an unreasonable length to hold that the same inference of waiver would arise, if the matter of estoppel arose after the pleadings were closed, and that though it could not be pleaded except by application to the discretionary power of the court, and obtaining leave, yet, if the party failed to make the experiment, even in a case where courts generally lean against the defense sought to be established, he shall still be deemed to have elected to waive the estoppel by not attempting to obtain leave to set it up ? The rule is properly stated in this respect in Howard v. Mitchell, supra, thus : “ When, in the course of the pleadings, the party who relies on matter of estoppel has no opportunity to plead it, he may show it in evidence, and it will in general have the same effect as if pleaded.”
Because appellants had no opportunity to plead the former judgment as an estoppel, but gave it in evidence under the answer setting up the usury, it was equally as conclusive as if it had been pleaded. The court had jurisdiction of the subject matter and the parties, and the same matters were directly in issue in both cases. Other suitors and the community were interested in having the appellee held concluded by the judgment of a competent court of the place of his own domicil. If the decision in Milwaukee had been the other way, then, upon the authority of the case of Dow v. McMichael, supra, appellee could have introduced the record in evidence, as conclusive; and estoppels are mutual.
It did not appear in the case that the mortgagor was insolvent, or that the mortgaged premises were not of sufficient value to pay the debt and costs. It was, therefore, erroneous to decree a strict foreclosure.
The mortgage of April 30, 1860, for $300, was the only one properly acknowledged by the wife, so as to cut off her right of dower. Yet, to redeem, she was required by the decree below to pay not only the amount due upon that mortgage, for principal and interest, but the amounts so due upon both the other mortgages. This is manifestly wrong. A separate account should have been taken as to her, and the decree so framed as to require the payment on her behalf of only the amount due upon the mortgage in which she relinquished her right of dower.
For these reasons the decree of the court below must be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
Decree reversed.