130 Ky. 323 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing.
Peter Sumner brought this suit against "William Griffin and Nody Griffin, alleging that he was the owner of a certain tract of land, and that the defendants were without right in possession of a part of the tract, and were unlawfully keeping him out of possession. William Griffin filed an answer, in which he denied that Sumner was the owner of the land, and pleaded that he was the owner, and that he and those under whom he claimed had been in adverse possession of it for 30 years. In another paragraph of the answer he pleaded that the controversy in the action had theretofore been litigated and settled between the parties in two separate suits in the same court, in which the same questions were at issue, and that, by reason of the judgment in those suits, the plaintiff was estopped from .the prosecution of this action. The record in those cases was referred to as part of the answer. By consent of parties the affirmative allegations of this paragraph of the answer were traversed of record: After the plaintiff on the trial had introduced evidence which made out for him a prima facie ease, the defendant William Griffin was introduced as a witness, and said that Nody Griffin was living on the land.under him, and that he had been sued for this land three times by the plaintiff. The clerk of the court was then introduced, and read to the jury a
The court should not have allowed the defendant to read to the jury the proceedings in action 3,954, which was dismissed without prejudice, as that record threw no light upon the controversy. The only other thing read to the jury was the judgment in action 3,801, but this was wholly insufficient to show that the proceedings in that case were a bar to this action. In order to make out a bar the plaintiff must show by the record and other proof the identity of the cause of action in that case with the thing in controversy in this case, and that the proceedings there were such as to conclude the plaintiff from bringing another action for that cause. On the return of the case the defendant will be allowed to amend his answer. The answer does not show that the cause of action is the same, or state facts sufficient to manifest prima facie that the plaintiff is concluded by the judgment in the action referred to. The rule is well settled that an exhibit
The common-law forms for such a plea are given in 3 Chitty on Pleading, side pages 929, 1062. These forms contain the averment that the judgment is in force, but in 1 Chitty on Pleading, side page 371,'it is said: “It is usual, also, to allege that the judgment still remains in full force and effect, and that the plaintiff has not obtained execution or satisfaction thereof; but this allegation is unnecessary.” In Kenney v. Howard, 67 Vt. 380, 31 Atl. 850, the court, holding sufficient such a plea, said: “It is urged that this plea is bad because it does not allege that the judgment of the probate court still remains in full force, and not reversed, satisfied, or made void. Such an allegation is not necessary. If a judgment set out in a plea does not remain in full force, the other party
While the plea here was not defective in that it was not averred that the judgment pleaded in bar was in force, it was defective in that it did not set out so much of the record as was necessary to show that the matter here sued for was in issue and was adjudicated in that action on the merits.
Judgment reversed, and cause remanded for a new trial.