Glenn v. Priest

• Decision Date: 07 October 1891
• Citation: 48 F. 19
• Parties: GLENN v. PRIEST, (two cases.) SAME v. DORSHEIMER.
• Court: U.S. District Court — Eastern District of Missouri

48 F. 19

GLENN v. PRIEST, (two cases.)

SAME v. DORSHEIMER.

United States Circuit Court, E.D. Missouri, Eastern Division.

October 7, 1891

Thomas K. Skinker, for plaintiff.

W. H Clopton, for defendants.

THAYER J.

Two questions are presented by the motions for new trial which have been filed in these cases. In the case against Priest as executor of Taylor it is insisted that the judgment rendered by this court on March 12, 1884, in the suit to recover the first assessment on decedent's stock, should have been admitted in evidence as a bar to the suit on the second assessment, although it was not specially pleaded. I am satisfied, after an examination of the authorities cited that the position taken is untenable. Before the adoption of the Code of Procedure it was the practice in this state, as well as in many other jurisdictions, to permit a judgment to be given in evidence under the general issue, (Offutt v John, 8 Mo. 120;) but at the present time, and since the adoption of the Code, the better opinion is that a judgment cannot be given in evidence, either to support the defense of former recovery or to show that a given question arising in a suit has been adjudicated in a previous suit between the parties, without being specially pleaded. The difference between the general issue at common law and a general denial under the Code is well marked, and has been frequently noted. Bliss, Code Pl. Secs. 323, 324. The general issue was sometimes regarded as tantamount to a denial of all liability, and under that plea almost any matter could be given in evidence which tended to show that the defendant was not liable. On the other hand, the office of a general denial under the Code is merely to put in issue material allegations of act contained in the petition or complaint, and under the latter plea only such matters can be given in evidence as tend to disprove facts stated in the complaint. Northrup v. Insurance Co., 47 Mo. 436; Musser v. Adler, 86 Mo. 445. In the case last cited the court say 'The general denial puts in issue the facts pleaded in the petition, not the liability. The facts from which the law draws the conclusion of non-liability must be pleaded in the answer when they are not stated in the petition.'

I do not understand that the decision in Garton v. Botts, 73 Mo. 274, is opposed to the rule stated in the two cases first cited. The question chiefly mooted in Garton v. Botts was whether a judgment, when offered in evidence without being pleaded, and without being objected to, was conclusive or was evidence that a jury might, in its discretion, disregard, because it had not been pleaded by way of estoppel. It will also be observed from a careful examination of the case in question that, as the issues were made up, the judgment in all probability was properly admissible in evidence, even if it had been objected to, because it tended to contradict material facts stated in the petition. My conclusion is that under the Missouri Code a judgment must be...