Johnson v. Knudson-Mercer Co.

• Decision Date: 27 November 1906
• Docket Number: No. 20,859.,20,859.
• Citation: 167 Ind. 429,79 N.E. 367
• Parties: JOHNSON et al. v. KNUDSON-MERCER CO.
• Court: Indiana Supreme Court

167 Ind. 429

79 N.E. 367

JOHNSON et al.

v.KNUDSON-MERCER CO.

No. 20,859.

Supreme Court of Indiana.

Nov. 27, 1906.

Appeal from Circuit Court, Huntington County; J. Fred France, Special Judge.

Action by the Knudson-Mercer Company against Albert G. Johnson and another. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court under Burns' Ann. St. 1901, § 1337u. Affirmed.

C. W. Watkins and T. G. Smith, for appellants.

HADLEY, J.

Appellees sued appellants for a balance due on a promissory note. The answer sets up that the note, in excess of the amount already paid thereon, was without consideration. To this answer the plaintiff replied that “the consideration of the note sued on in this action was an issue in an action in said Huntington circuit court, being cause No. 8,864, wherein this plaintiff was the plaintiff, and the defendant Albert G. Johnson one of the defendants therein; that said action involved an accounting of a series of transactions between this plaintiff and the defendant Albert G. Johnson; that said Albert G. Johnson claimed and was awarded credit in that action for the note sued on in this action, and the consideration of said note was made an issue in said action between this plaintiff and said defendant Albert G. Johnson, and said issue was heard and determined in said cause No. 8,864, in favor of the plaintiff, and, on March 29, 1904, judgment was rendered in said cause in favor of this plaintiff on the merits of said issue, and said issue is in full force and remains unappealed from; that Elias H. Coss, a defendant in this action, is surety only for the defendant Albert G. Johnson.” To this paragraph of the reply the defendant's demurrer was overruled, and this action of the court presents the only question for decision. Under the approved practice in this state a plea of former adjudication must show: (1) that the former judgment was rendered by a court of competent jurisdiction; (2) that the matter now in issue was, or might have been, determined in the former suit; (3) that the particular controversy adjudicated in the former action was between the parties to the present suit; and (4) that the judgment in the former action was rendered on the merits. 1 Work's Prac. § 605, p. 391; 9 Ency. of Pl. & Prac. p. 619; Jones v. Vert, 121 Ind. 140, 22 N. E. 882, 16 Am. St. Rep. 379; Railroad Co. v. State, 153 Ind. 134, 143, 51 N. E. 924;State v. Page, 63 Ind. 209, 212; 2 Van Fleet, Former Adjudication, p. 1327; 5 Current Law, p. 1516.

Appellant's first objection to the reply is that it does not show that the parties in the former action were the same as in this. The averment is that “the defendant Albert G. Johnson, of this action, was one of the defendants” in the former action. But this is not all that is averred. The plea continues, “that said action involved an accounting of a series of transactions between the plaintiff and said defendant Johnson, wherein Johnson claimed and was awarded credit in that action for the note sued on in this action, and the consideration of said note was made an issue in said action between this plaintiff and said Johnson,” and that codefendant Coss was only surety on said note for Johnson. This was sufficient. The expression often found in the books that the subject-matter of the two actions must be the same, and the controversy between the same parties or their privies, is true in this state with some limitation. The subject-matter of the particular issue must be identical, and the parties or their privies to the pending suit must have been adverse parties to the same issue in the former action, but it is not important that the parties to the two actions shall be the same. Richardson v. Jones, 58 Ind. 240; 1 Work's Prac. § 605; Wilson v. Buel, 117 Ind. 315, 20 N. E. 231;Board, etc., v. Beaver, 156 Ind. 450, 456, 60 N. E. 150, and cases cited; Davenport v. Barnett, 51 Ind. 329, 333;Finley v. Cathcart, 149 Ind. 470, 48 N. E. 586 63 Am. St. Rep. 292;State v. Krug, 94 Ind. 366, 370;Greenup v. Crooks, 50 Ind. 410. Neither is it essential to a sufficient plea of former recovery that the plea should show that the former action was the same. It is enough to show that the particular controversy was in issue, and judicially determined between the parties to the present suit. “The best and most invariable test as to whether a former judgment is a bar,” says a distinguished author, “is to inquire whether the same evidence will sustain both the present and the former action....