Thompson v. Wineland

• Decision Date: 31 October 1847
• Citation: 11 Mo. 243
• Parties: THOMPSON v. WINELAND.
• Court: Missouri Supreme Court

11 Mo. 243

THOMPSON

v.WINELAND.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

EAGER & HILL, for Appellant. On the trial of this cause, the court found the issue on the replication of nul tiel record to defendant's plea of former recovery, for the defendant; and the plaintiff having withdrawn his second replication to that plea, judgment that the defendant hath perfected the record ought immediately to have been entered. 2 Tidd's Pr. 690. The plea of former recovery went to the whole action, and it was irregular to permit the case to go to the jury after the finding of the court that the defendant had perfected the record. The finding of the court on the replication of nul tiel record, to the plea of former recovery, is a complete bar to the recovery of the plaintiff. Stat. of Mo. Practice at Law, art. 6, § 7, 8th subdivision; 2 Johns. 181, 191, 200; 11 Johns. 457; 16 Johns. 136; 8 Johns. 453; 3 Caine, 152; 3 Johns. 433; 13 Johns. 184; 5 Wend. 240; 16 Wend. 583.

TODD, for Appellee.

1. The appellant not having filed any motion for a new trial, the judgment of the court below should be affirmed. Higgins v. Breen, 9 Mo. R. 497. 2. The appellant's only exception in the case is to the decision of the court granting the appellee's motion for judgment. Hence, the only inquiry that can be in the case is whether that decision be correct. A correct test of this is, to consider whether said plea is a bar, or in other words, whether it was a good plea on demurrer. Stephens on Pl. 129. 3. The evidence not being preserved, the court cannot see whether or not judgment be rendered for the right party.

NAPTON, J.

The action of the Circuit Court in giving the plaintiff the benefit of the verdict upon the general issue, without regard to its finding on the issue presented by the plea of former recovery, must have proceeded on the ground that the plea presented an immaterial issue. The objections now made to the plea of former recovery are two-fold. The first class of objections is to the form of the plea, which, as there was no demurrer, cannot now be noticed. The principal objection is, that the set-off which the plea recites, was inadmissible in the former suit, and is therefore no bar to the present action. We do not think it material in this action whether the set-off was a proper one or not. The reasons suggested by the counsel for the defendant in error against the admissibility of such set-off are certainly forcible, and probably conclusive. But we consider it as well settled, that where a defense has been insisted on in a former action, submitted to and passed upon by a jury, and not objected to by the plaintiff, the party making such defense cannot afterwards maintain an action for the matter thus set-off. The record of the former suit is a bar. McLean v. Hugarin, 13 Johns. 184; Lawrence v. Houghton, 5 Johns. 129; Skelding v. Whitney, 3 Wend. 154; Wilder v. Case, 16 Wend. 583. The case of Manny v. Harris, 2 Johns. 24, has been...