Hoopes v. J. F. Rowley Co.

• Decision Date: 28 January 1918
• Docket Number: No. 12732.,12732.
• Citation: 200 S.W. 443
• Parties: HOOPES v. J. F. ROWLEY CO.
• Court: Missouri Court of Appeals

200 S.W. 443

HOOPES v. J. F. ROWLEY CO.

No. 12732.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

"Not to be officially published."

Action by Oscar E. Hoopes against the J. F. Rowley Company, a corporation. From an order sustaining plea of res adjudicata, plaintiff appeals. Reversed and remanded.

James W. Hawes, of Kansas City, for appellant. W. B. Dickinson, of Kansas City, for respondent.

BLAND, J.

This is an action for deceit. The petition prays for damages in the sum of $1,000 on account of fraud alleged to have been perpetrated by defendant in a transaction involving the sale of stock by defendant to plaintiff. In its answer defendant pleaded res adjudicata, and, the court having sustained this plea, plaintiff has appealed.

In support of its plea of res adjudicata defendant introduced the petition, answer, and judgment in a cause previously brought in the circuit court of Jackson county, Mo. The petition in the last-mentioned case alleged substantially the same facts as the petition in the present case, except that instead of the former asking a judgment for damages in the sum of $1,000, it asked that the contract for the sale of stock be rescinded, and that the court decree a return of the thousand dollars paid for the stock. The answer in the former case was a general denial, the admission of the sale of the stock, and a specific denial that defendant ever made any fraudulent representations to plaintiff to induce him to buy the stock. It asked no affirmative relief. The judgment in the former case recited that the plaintiff failed to appear to prosecute his cause, and the court, after hearing the evidence, found the issues in favor of the defendant, and adjudged that the plaintiff take nothing by his action, and that the defendant have judgment for costs.

Plaintiff urges that under the circumstances the former judgment was not res adjudicata, and we believe his contention to be well taken. It is held in Wright v. Salisbury, 46 Mo. 26, that in order that a former judgment may be res adjudicata, it must have been rendered by a court that had jurisdiction, and that a decision, to be a bar, must have been upon the merits, and the matter set out must have been determined. Where plaintiff fails to appear to prosecute his action the court cannot render a judgment upon the merits, but must dismiss the case. That a judgment on the merits cannot be so rendered is...