5 Ct. Cl. 34 | Ct. Cl. | 1869
Lead Opinion
delivered the opinion of the court:
This is the second suit brought by the claimant in this court upon the same cause of action. In the former case, judgment went against the claimant on demurrer to his petition.’ The defendants now plead that judgment in bar. The claimant objects, and’ shows by the opinion of the court that his former petition was in fact dismissed for a defect, now remedied, in not stating that he owned and tendered certain horses which the defendants had agreed to receive. The defendants reply that his petition did in fact contain such averments, and that if the judgment of the court was wrong he should have appealed.
It may be noted, first, that the counsel for the defendants, in addition to the general principles of a common law estoppel, cites and relies upon a special statutory estoppel created by the act reconstituting this court. (Act 3d March, 1863, 12 Stat. L., p. 765, § 7.)
The seventh section of that act relates to the payment of the “final judgments” of this court. But to the section are appended three provisos. The second of these declares “ That such payments shall he a full discharge to the United States of all claim or demand touching any of the matters involved in the controversy and the third, “ That any final judgment rendered against the claimant on any claim prosecuted as aforesaid shall forever har any further claim or demand against the United States arising out of the matters involved in the controversy.”
It is not perceived'by us that these provisions relate to judgments other than those rendered upon the merits, nor that they change the rule of the common law, nor that they wei’e intended to do more than attach to the final judgments of this court the conclusiveness which the common law ascribes to the final judgments of all courts of competent jurisdiction. The words, twice used, “ of the matters involved in the controversy,” seem to point simply to the well settled doctrine of all courts of the common law.
' At the time when this court was invested with judicial power, it had become the custom of claimants in and about Congress so soon as they procured relief to immediately seek more. Thus, on the claim of Fisher, of which the history is given in Gordon’s Case, (1 C. Cl’s R., p. 1,) there was first allowed $8,873 for property destroyed by United States troops; then $10,0 for an error of calculation in the first “ aioardf then $8,997.9.4 for interest j then $10,004 89 for more interest; then $39,217 50 for property previously found not to have been destroyed try United States troops ; and finally $66,519 85 on a “ revision ” of the previous awards. The provisos cited from the act of 1863 were probably inserted to prevent such legislative leniency from being misinterpreted into a rule of judicial action.
But an important fact should be noted here; and it is, .that
The court gave to the petition the same construction ; for it is said in the opinion: “ None of the horses toere ever offered for acceptance.” And again: “ He [the claimant] never attempted to performTherefore, the objection taken by the demurrer, and the judgment thereon rendered by the court, were for the real or supposed want of a fact which the. claimant, by his petition in the present case, supplies: and the question is, whether the bare record in the former suit, and the judgment rendered therein, conclude the claimant in this, irrespective of the construction given to the petition' by both the defendants and the court, and without regard to the specific facts which, by judicial construction, were actually determined and adjudicated.
u Estoppels,” says Coke, “ are odious,” and the context implies that they arc not, like warrantees, “ favored in law.” (Co. Litt., 365, b.) And in his second and third rules regarding estoppels, he Jays down this doctrine: “ That every estoppel, because it concludeth a man to allege the truth, must he certain to every intent, and not to be taken by argument or inference.” u Every estoppel ought to be a precise affirmation of that which . maketh the estoppel, and not be spoken impersonally; as if it be said ut dieitur quia impersonalitas non concludit nee ligat; impersonalis dieitur, quia sine persona. Neither doth a recital conclude, because it is no direct affirmation.” (Co. Litt., 352, a.) The only contraction of these rules I have found in any of the numerous cases is, that the recitals of a deed are conclusive “ upon all persons claiming under the parties in privity of estate.” Carver v. Jackson, (4 Peters R., p. 1.) Or, as was more broadly held in Jackson v. Parkhurst, (9 Wend. R., p. 209,) such recitals do “ estop parties and privies.”
But the principles so well enunciated by Coke existed long before his time. So long ago as in the reign of Henry YI, “ it seems to have been, laid down as a general rule that no party or privy to a recovery shoiild falsify in the point tried hy a verdict — otherwise, if the issue had been upon a collateral point, and
There is no doubt, I apprehend, that in the early administration of justice under the common law, when the purchase of a writ was deemed somewhat of a favor, as well as a right, parties were held to a much stricter accountability for their actions than subsequently, and certainly than at present prevails. Thus, in Ferrer’s Oase, (Co. Reps., Part YI, p. 7 :) “ Between Ferrer and Arden, these points were resolved: 1, when one is barred in any action, real or personal, by judgment on demurrer, confession, verdict, &c., he is barred as to that, or the Wke action of the Mice nature, for the same thing, forever.. For, expedit reipublicce ut sit finis litiumP And iii the same case, alluding to the various cases where a party was Avithout remedy — as one in the remainder, Avhere the tenant for life had suffered a recovery, or the wife Avhere the husband had allowed a recoArery by default — he remarks that, “ in the judgment and policy of the law, it Avas thought more profitable to the commonAvealth, and more for the honor of the law, to leave some withorit remedy, (as is aforesaid,) and to put others-to their writ of right, without any respect of coverture, &c., than that there should not be an end of actions and suits j” and he at the same time bewails the modern “ neglect” of the “ rule and reason of the ancient common law.”
Yet, in Robinson’s Case, (Part V, 33 Co. Reps.,) “it was unanimously agreed,” though not till “ the cause was well debated at the bar and bench,” that the mistaking of his action is no bar nor estoppel ” to a party “ to bring Ms true action.” The plaintiff there had brought an action of debt as administrator upon, a bond, when he Avas in fact an executor; and on the defendant’s plea to that effect it had been adjudged against the plaintiff, and Ids suit dismissed. In a second action upon the bond, brought by the executors, the defendant pleaded the former judgment in bar, “ he pretending that forasmuch as one of the plaintiffs was barred in the former action, that they should be barred forever.” Hence, Gilbert (1 Ev., p 201) lays down the rule, that a party suing in a different capacity (as in character of administrator or executor) will not be bound by the former recovery. So also Bouvier (3 Ins., § 3098) recognizes the same test.
Although the reason of the rule of the common law has -been
,« From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true : 1. 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. 2. That the judgment of a court of exclusive jurisdiction, directly upon the same point, is in .like manner conclusive upon the same matter between the same parties coining incidentally in question iir another court.”
The rule has been repeatedly recognized and affirmed: 1 Phps.Ev.,326,7; Cow. & Hill’s Notes, p. 818, n. 571, p. 819, n. 574; Brockway v. Kinney, 2 John’s R., p. 210; Williams v. Jackson, 5 id., p. 501; Ruggles v. Sherman. 14 id.; Gardner v. Buckbee, 3 Cow. R., 126; Coles v. Carter, 6 id., p. 691; Lawrence v. Hunt, 10 Wend. R., p. 82; Walsh v. Ostrander, 22 id., p. 180; Wood v. Jackson, 8 id., 37 ; Doty v. Brown, 4 Comst. R., p. 73; Trevivan v. Lawrence, (2 Smith L. C., p. 435.)
There probably is not, in all of the decisions of courts of the common law, an instance of a legal principle so successfully reduced to a legal rule; nor of a rule that has been so universally famous and so implicitly followed. Many questions have arisen as to its application, such as who were parties, more often who were privies; but the rule itself has been unquestioned. A single exception to this universality of acceptation, so far as I have observed, has been made seemingly in some of the American courts, founded upon that clause which says that a former judgment is “ as evidence eonclusiveP It was observed. that a train of both English- and American decisions held that where a party had neglected to plead a former judgment as an estop-pel, but gave it in evidence on the-trial, it was as evidence but •prima facie ; and hence it was argued that the rule stated the
Lord Walsingham is careful to append to his celebrated rule this express reservation: u.Bnt neither the judgment of a eon-current nor of an exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction ; nor of any matter incidentally cognisable ; nor of any matter to be inferred by argument from the judgment.” And under this, writers and judges have been most careful to state that the precise point in issue must have been actually decided in the former action. - • ■
Thus Chitty, (1 Pls., 604:) “ Where the matter in question has been tried upon a particular issue between the same parties, in the former suit, and there lias been a finding thereon by the jury, such finding operates as an estoppel by matter of record, provided it be specially pleaded and relied on as such.” And see as to form of plea, 3 id., 1062.
Thus Bouvier, (3 Inst., § 3101:) “To make a judgment conclusive upon the parties, it is required that it should have been rendered upon the matters, directly in issue, and not on a thing incidentally brought in controversy during the trial. A record is conclusive only on matters actually tried.”
The modern English cases hold with equal tenacity to the requirement of certainty. In Wright v. Bucknell, (2 Barn. & Adol., p. 251,) Lord Tenterdeh said: “ An estoppel should be certain to every intent, and, therefore, if the thing he not precisely and directly alleged, or he mere matter of supposal, it shall not he an estoppel.” In Carter v. James, (13 Mees. & Wels., p. 147,) Baron Alderson said: “ In order to make out that this is a good estoppel, the idea ought to show that the point intended to he relied on as a defense was, in the former proceeding, decided against the plaintiff.”
The American cases have been equally decided. In one heretofore alluded to, Jackson v. Wood, (3 Wend. R., p. 35,) Mr. Justice Marcy said: “ Throughout the whole of his very able and elaborate opinion in that case, (Outram v. Morewood,) Lord Ellenborough is exceeding careful to limit the conclusiveness of a former judgment to the identical matter put in issue by the pleadings. ‘ A judgment, therefore,’ he says, ‘ in each species of action is final only for its own proper purpose and object and no further.’” “If the defendant,” adds Justice Marcy, “could have pleaded the former judgment as an estoppel, and had pleaded it with all possible averments, his plea would -not have shown enough to create á bar to the plaintiff’s recovery, .because it would not have appeared from the record that the
In another New York case, (Young v. Rummell, 2 Hill R., p. 480,) a very eminent judge, Mr. Justice Bronson, lays down the rules to be deduced from modern cases, and “maintained both upon principle and authority.” These rules, I may add, were approved by Chief Justice Buggies in a case in the New York Court of Appeals, (White v. Coatsworth, 2 Seld. R., p. 142.) The third is as follows: “ The judgment is only evidence by way of bar when the same matter was directly in question in the former suit. The record must show that the same matter might have come in question on the former trial, and then the fact that it did come may be sliowm by proof aliunde.”
For the better attainment of this certainty, courts in modern times have admitted evidence aliunde the record to show that a matter which might have come in controversy in the former suit actually did come and was decided. A different idea seems to have formerly prevailed. Chief Justice Hosmer in Smith v. Sherwood, (4 Conn. R., p. 276,) held that, in order to constitute an estoppel by a former judgment, the precise point which is to create the estoppel should have been put in issue and decided; and that the fact that it was so put in issue should appear from the record alone. The same doctrine was laid down by Mr. Justice Swift in Church v. Leavenworth, (4 Day’s R., 274,) and in Ryer v. Atwater, (id., p. 431,) wherein it is held that if there were several distinct points in issue a verdict cannot be introduced to prove one. In the courts of New York the rulings were not uniform or clear till the decision of Mr. Justice Woodworth in the case of Gardner v. Buckbee, (3 Cow. R., p. 126,) in which he says: “ The record [of the former suit] shows that it was competent on the trial to establish the fraud of the plaintiff. Whether fraud was made out and whether that was the point upon which the decision was founded, must necessarily be proved by evidence extrinsic the record.” This was subsequently approved in Coles v. Carter, (6 Cow. R., p. 691.) Though not positively decided, it was recognized by the Supreme Court of that State, (Young v. Rummell, 2 Hill’s R., p. 480;) by
In the earlier case of Young v. Blade, (7 Cranch R., p. 565,) the same principle had been applied to actions of assumpsit:; and in the later case of the Packet Co. v. Sickles, (5 Wallace R., pp. 580, 592,) Mr. Justice Nelson says: “ As 'Ave understand the rule in respect to the eonclusiveness of the verdict and judgment in a former trial betiveen the same parties,- Avhen the judgment is used in pleading as a technical estoppel, or is relied on by way of evidence as conclusive per se, it must appear by the record of the prior suit that the particular controversy sought to he concluded was necessarily tried and determined — that is, if the record of the former trial shows that the verdict could not ■have been rendered , without deciding the particular matter, it Avill be considered as having settled that matter as to all future actions between the parties; and further, in cases where the record itself does not sIiqav that the matter was necessarily and directly found by the jury, evidence alhmde consistent with the record may be received to piwe the fact; Zmt even where it appears from the extrinsic evidence that the matter was properly within the issue controverted in the former suit, if it he not shown ihat the verdict and judgment necessarily involved its■ consideration and determination, it will not he concluded.”
By all of these cases it is apparent that it is not the formality of a judgment on the same cause of action which constitutes an estoppel; but, as was said by Lord Hardwicke in Hugh Smithson’s Case, (cited in Buller’s N. P., 228,) “ it is an estab-
With regard to estoppels from judgments on demurrer1 there is a singular silence in the modern books. It might even be inferred from the elementary works that with the relaxation of . the rule of the u ancient common law,” courts had gone to the extreme of holding that an e'stoppel arises only upon verdict where a fact actually controverted between the parties has been actually decided upon evidence; in other words, that h determination upon a fact admitted has not the legal significance of a determination upon a fact controverted; that a defendant is not vexed as to a fact which he himself admits, and that his opponent’s declaration or plea is only to be taken for what it is worth as an admission in that suit.
This principle has been recognized and applied in the English courts. In the case before cited, of Carter v. James, (13 Mees and Wels., p. 137;) Baron Alderson, after showing of the former suit that the defendant’s i>lea contained several allegations, says: “ This latter allegation alone was traversed'by the plaintiff in his replication, so that the only issue the jury had to try was whether the bond Avas given for that interest, among other debts, .amounting altogether to the sum of £600.‘ The jury found that fact; and it was incidentally in that case taken for
It is at this point, I apprehend, that cases grouped under the general title of res judicata fall properly into two classes : 1st. Cases where the judgment has been rendered on the defendant’s demurrer, where no facts have been controverted and no evidence given; in such the judgment, if rendered on the merits, is a bar to any subsequent action on the same cause and for the same relief; but the specific facts admitted by the .pleadings are not to be taken as facts controverted and established by evidence, and cannot be set up by way of estoppel in any different action .where they may come in controversy. 2d. Cases where a controverted fact directly in issue has been judicially established upon evidence: in such the fact itself may be used in any subsequent action of a not higher nature, where it may be again in controversy. Thus in the case of Outram v. Morewood, (3 East. R., p. 353,) the plaintiff sued in trespass for entering his close and carrying away coals. The defendants plead title in one of themselves. The plaintiff re
Commenting upon that opinion, one of the ablest of the former judges of New York, Mr. Justice Sutherland, has said in Burt v. Sternburgh, (4 Cow. R., p. 562 :) It is well remarked by Lord Ellenborough, in Outram v. Morewood, that “ the operation'and effect of a former recovery,"if it operate at all as a conclusive bar, must be by way of estoppel; that it is not'the' recovery but the matter alleged by the party and upon which the recovery proceeds, tohieh creates the estoppel.”
In White v. Coatsworth, (2 Seld. R., p. 142,) the New York court of appeals held, in regard to a former adjudication pleaded in bar, (it being the finding of a jury that no rent was due, in summary proceedings by alandlord to recover possession for the non-payment of rent,) per Edmonds, J.: “The question is not, as was urged on the argument, whether that adjudication was evidence that no rent was due, but it is simply whether, that fact having been passed upon between the same parties in a tribunal having power to pass upon it, those parties are not now estopped from mooting the question in another action.”
• Now, in 'the case at bar the defendants do not seek to use any fact as if controverted and established by the former suit, but simply to plead their recovery itself as a bar to the recovery of the same damages on the cause of action. The decisions cited show that this may be done where the recovery was a trial on the evidence. The recent case of Goodrich v. .The City of Chicago (5 Wallace K.., p. 566) is decisive of the right where the former recovery was upon the defendant’s demurrer. In that case the plaintiff sued the city in the Supreme Court of Illinois to recover damages for the sinking of their steamer on the Chicago River, caused by the negligence of the defendants
But the judgment here referred to, though upon demurrer, must still be a judgment upon the merits. Where the former suit lias been adjudged against the plaintiff, not upon the facts but for a defect of fact, as is the case here, it is precisely analogous to a judgment of nonsuit, and does not bar the second action. There a plaintiff establishes .certain- facts by evidence; and failing to establish all that may be necessary to complete a case, he is nonsuited, and after paying his costs may bring another action. The defendant cannot set up the first as a bar; for nothing was determined save the legal deduction that the plaintiff had failed to prove something essential to a recovery. Hero the claimant established certain facts by the allegations of his petition, they being not controverted by the demurrer, but admitted; the defendants objected that he had not established (that is, alleged) facts sufficient; the court so decided. Leave to amend his petition would have been a favor, and not aright. It was not extended to him; he has been subjected to, the expense and delay of second suit. Though he had the right of appeal, it would not have supplied what the defendants insisted was the omission of a material fact. That he deemed the. fact to be immaterial then, should not preclude him from averring it now. He stands precisely in the plight.of a plaintiff nonsuited because his evidence was insufficient. The defect which the one may make good by proof, the other may supply by pleading. The defend- • ants controverted no fact, and hence established none. The old doctrine, that the mere bringing of one personal action was a perpetual bar to ever bringing a second on the same cause of action, has passed away, and is to be regarded as an abuse and not.a just application of the principle, nemo debet bis vexari.
In the case of Gilman v. Rives, (10 Peters R., p. 298,) Mr. Justice Story, who delivered the opinion of the court, says: “ The objection may be urged that the judgment upon a general demurrer in this case will be a good bar to every future suit brought against the present defendant upon the same debt, - or against him and the other judgment debtor. We are of a different opinion as to both, if the declaration be properly framed; for a judgment that a declaration is bad' in substance (which alone, and not matter of form, is the ground of a general demurrer) can never be pleaded as a bar to a good declaration for the same cause of action. The judgment is in no just sense a judgment on the merits.”
In the case of Hughes v. The United States, (4 Wallace R., p. 232,) Mr. Justice Field, who delivered the opinion of the court, says: “In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and must be determined on its merits. If the first suit was dismissed for defect of pleadings, or points, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground that did not go to the merits of the action, the judgment rendered wdll prove no bar to another suit.”
The case cited on the argument by the learned counsel for
After a somewhat extended review of this branch of the law, I- am inclined to think that no case can be found, and certainly none in the federal courts, where a judgment rendered on demurrer, alleging the want of a material fact in the declaration, has been deemed a bar to a second action presented bja declaration wherein the material fact omitted from the first is sufficiently averred. The concurrent ruling of both the American and English courts seems to be that a judgment rendered for the wrant of a specific fact in the declaration is not a judgment upon the merits. A conclusive test I take this to be that where the declaration in the second suit, by reason of newr averments, is not objectionable to the demurrer in the first, the issue is changed, and the latter suit is not res judicata.
If it were necessary to pursue the subject further, I should say that the principle now established by the Supreme Court, that parol evidence is admissible to show that what properly might have been decided under the pleadings was in fact passed upon at the trial, is applicable to decisions on demurrer so far as to warrant us in looking into the opinion rendered. In this case that opinion shows that the former decision went upon the precise objection taken by the defendants, “ that the claimant never delivered, or offered to deliver, any portion of the horses which he contracted to furnishor, as the opinion states, it, “ none of the horses were ever offered for acceptance.” It is true that the court then proceeded to examine the question whether certain other facts alleged in the petition excused the want of a tender of the horses, and the examination certainly bears a resemblance to a decision upon the merits. But it is a decision upon the merits remaining, and with the material fact omitted.
Moreover, before there can be an estoppel by record, there must have been a distinct issue, of law or of fact, joined, tried, and determined. If the defendants are right in saying that the former petition contained a sufficient averment of tender, then they were wrong there in tendering an issue of law on the contrary defect. What they called a demurrer they should have called a plea, for it alleged that there had been no tender. In short, the pleadings in the former suit meant one thing then, and mean another thing now, and fail to present a distinct issue distinctly determined.
This case presents also a curious illustration of another principle of the law of estoppels, as expressed in the quaint language of Coke: “ JSstoppe cometli of the French word estoupe, from whence the English word ‘stopped;’ and it is called an estop-pel or conclusion, because a man’s owne act or acceptance stop-peth or closeth up his mouth to alleage or plead the truth.” (Co. Litt. 352, a.) Now here we have the defendants’ own act of averring, by demurrer in the former suit, that the former petition did not allege what they now aver it did allege. Does not that former act of so alleging by demurrer, and going to trial - thereon, and recovering a judgment against the claimant upon that precise allegation, close up their mouths now “ to alleage or plead” the reverse? I think it does, and hence that the case is brought within the “ sixthly” of Coke: “Estoppell against estoppell doth put the matter at large.”
The demurrer is sustained; the special plea in bar is overruled, and the defendants will answer over.
Dissenting Opinion
dissenting:
The petition in this and in the former case set forth the same cause of action. Every material and substantive allegation in this petition has its copy and counterpart in the former. The same contract is sued upon, the same breach is assigned, and the same damages are claimed. The general demurrer to the former petition admitted these facts. The judgment in favor of the defendant was upon the merits. The act of March 3, 1863, section 7, says this judgment is final. It would have been so without this statutory provision. For the very point was decided by the Supreme Court of the United States in Durant v. Essex County, (7 Wall, 107.) A decree dismissing a bill which is absolute in its terms is a bar to another suit between the same parties. To the same effect are Stockton v. Ford, (18 How., 418,) and Fourniquet v. Perkins, (7 How., 160.)
In Goodrich v. The City of Chicago, (5 Wall, 566,) the very point is ruled. That was a suit in the State court, and judgment on general demurrer for the defendant. A libel then filed in admiralty in the district court of the United States for the same cause of action. The former judgment was pleaded in bar and held conclusive as res adjudieata. See Goodrich v. The City, (20 Ill. Rep., 405; Packet Company v. Sickles, 5 Wall, 580.) The same court announced the doctrine in a clear and comprehensive manner in Clearwater v. Meredith, (1 Wall, 25:) “ On demurrer to any of the pleadings which are in bar of the action, the judgment for either party is the same as it would have been on an issue of fact joined upon the same pleadings, and found in favor of the same part3. And judgment of nil capiat should be entered, notwithstanding there may be also one or more issues of fact, because upon the whole case it appears that the plaintiff has no cause of action.” (Gould on Pl., ch. IX, section 42 ; Tidd's Pr., 4th Am. Ed., 741-2.)
The same doctrine is maintained in Thompson v. Roberts, (24 How., 241; also, 10 Peters, 298.) The test whether the former judgment was for the same cause of action and operates as a bar, is when the same evidence will support either declaration or bill. Lawrence v. Vernon, (3 Sumn., 20.) A general demurrer admits every fact sufficiently pleaded. Commonwealth v. Cummings, (1 Wright Pa. Rep., 277;) Havens v. Hartford R. R. Co., (28 Conn., 69.) On general demurrer to a declaration judgment for
In the case of Hughes v. the United States, (4 Wall, 237,) Mr. Justice Field very tersely and concisely gives a summary of the whole law on this subject, as follows:
£! In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be.the same in both cases, and must be determined on its merits. If the first suit was dismissed for defect of pleadings, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit."’
This expresses the well-established rule upon this subject, and leaves not an atom of ground for the claim ant to stand upon in this case. The suit here pleaded in bar was, in this court, upon the same cause of action precisely, between the same parties, and decided upon its merits. There were no defects of parties, or forms, or pleadings, or jurisdiction in the former case. Everything material and substantive which he alleged then he avers now, and nothing more; everything which he proposes to prove now was admitted of record then; and the opinion of my brother Peck, in the former suit, shows clearly that the merits were fully considered and explicitly decided.
The conclusion here reached by a majority of the court, I think, is contrary to the well-established law; and contravenes the repeated adjudications of the Supreme Court of the United States in the cases cited; and especially that in Goodrich v. The City, (5 Wall, 566,) which, in principle, cannot be distinguished from this.
When this case comes up on the evidence, I may take occasion to examine into the soundness of the decision in the case of Daniel Wormer, (4 C. Cls. R., p. 258.) Being satisfied that the
Dissenting Opinion
dissenting:
The former judgment was necessarily on the merits, for the general demurrer admitted the facts stated in the petition, and the decision was made by applying the law to those facts, in the same way and with the same effect as if they had been proved by witnesses.
Then the sole cause of action in this second petition is the two contracts counted on in the first, on which the judgment was rendered.
And where the judgment in a former suit was on the merits, and on the same cause of action counted on in a second, the bar is peremptory on the reasons and authorities stated in the opinion read by the Chief Justice.
All that is claimed here, is, that this second petition contains a material allegation omitted in the former petition. But whether this is so or not, is immaterial, because the claimant had the same case before as now, and could then have made the same averments as now; and if he neglected to do so, it was his own fault, and he must take the consequences of that, and cannot inflict them on the other party in the shape of renewed litigation.
This is the rule even where the first judgment is on a matter of form. In 2 Smith’s L. C., 809, (notes to Dutchess of Kingston’s Case, 6th ed.,) the rule is thus stated: “ That the former decision was on technical grounds and did not touch the merits of the controversy, will moreover be immaterial, unless the proceeding was one in which they could not have been heard and determined; and a party who fails to maintain his case by the proper allegations or evidence must submit to the consequences of his negligence and cannot have relief in another suit. [Carter v. Grout, 6 John., 168; Jones v. Scriven, 8 id., 452; Gray v. Gelellan, 15 Ill., 454.”)
It is true that the decision of this court in the former case has been overruled in a subsequent ease, but that does not vacate the former judgment or alter its legal effect between the parties. ' The authority just cited says: “ And it is equally settled that the correctness of a judgment cannot be impeached on
I think the defendants are entitled to judgment.
