Johnson v. Knudson-Mercer Company
| Decision Date | 27 November 1906 |
| Docket Number | 20,859 |
| Citation | 79 N.E. 367,167 Ind. 429 |
| Parties | Johnson et al. v. Knudson-Mercer Company |
| Court | Indiana Supreme Court |
From Huntington Circuit Court; 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 § 1337u Burns 1901, Acts 1901, p. 590.
Affirmed.
T. G Smith, C. W. Watkins and A. G. Johnson, in pro. per., for appellants.
W. D Hamer, for appellee.
Appellee 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 a suit 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 suit 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 suit for the note sued on in this action, and the consideration of said note was made an issue in said suit 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 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 suit was between the parties to the present suit; (4) that the judgment in the former suit was rendered on the merits. 1 Works' Practice, § 605; 9 Ency. Pl. and Pr., 619; Jones v. Vert (1889), 121 Ind. 140, 16 Am. St. 379, 22 N.E. 882; Chicago, etc., R. Co. v. State, ex rel. (1899), 153 Ind. 134, 51 N.E. 924; State, ex rel., v. Page (1878), 63 Ind. 209, 212; 2 Van Fleet, Former Adjudication, p. 1327; 5 Current Law, 1516.
Appellant Johnson's first objection to the reply is that it does not show that the parties in the former suit were the same as in this. The averment is that "the defendant Albert G. Johnson, of this suit, was one of the defendants" in the former suit. But this is not all that is averred. The plea continues, "that said suit involved an accounting of a series of transactions between the plaintiff and said defendant Johnson, wherein Johnson claimed and was awarded credit in that suit for the note sued on in this action, and the consideration of said note was made an issue in said suit 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 suits 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 suit, but it is not important that the parties to the two suits shall be the same. Richardson v. Jones (1877), 58 Ind. 240; 1 Works' Practice, § 605; Wilson v. Buell (1889), 117 Ind. 315, 20 N.E. 231; Board, etc., v. Beaver (1901), 156 Ind. 450, 60 N.E. 150, and cases cited; Davenport v. Barnett (1875), 51 Ind. 329, 333; Finley v. Cathcart (1898), 149 Ind. 470, 63 Am. St. 292, 48 N.E. 586; State, ex rel., v. Krug (1884), 94 Ind. 366, 370; Greenup v. Crooks (1875), 50 Ind. 410.
Neither is it essential to a sufficient plea of former recovery that the plea should show that the former suit 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, 1 Freeman, Judgments (4th ed.), § 259, and many cases collated. See, also, Hereth v. Yandes (1870), 34 Ind. 102; Campbell v. Cross (1872), 39 Ind. 155; Reeves v. Plough (1874), 46 Ind. 350; Turner v. Allen (1879), 66 Ind. 252; Green v. Glynn (1880), 71 Ind. 336; McCarty v. Kinsey (1900), 154 Ind. 447, 57 N.E. 108; Wilson v. Buell, supra.
The weakness suggested by the averment that ...
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