Imágenes de páginas

Subsequently, further benefits accrued, and amination and trial, in these courts, of the he brought this action in the superior court to questions involved in a cause of action whicb recover the same.

the justice's court could not originally have Further facts appear in the opinion.

entertained at all. Mr. W. H. L. Barnes, for appellant: Tbe money demand sued upon in this action

The justice's court is not a court of concur- is not the same money demand sued upon in rent jurisdiction with the superior court in re- the justice's court. It was not, and could not spect of the subject matter of this action. have been, in litigation in that actiou. See Code Civ. Proc. $ 114.

Bigelow, Estop. 3d ed. pp. 37–39; Jones v. A judgment of a justice's court upon a cause Petaluma, 36 Cal. 230; Hughes v. Alexander, of action within its jurisdiction should not be 5 Duer, 493. permitted 10 control the judgment of the su- In the case of periodically recurring liabil. perior and supreme courts and prevent the ex. ity a former judgment cannot be a bar to an

to another action for the same cause, in the State complaint, with costs taxed and execution awarded, where rendered, is, by the Constitution of the is a final decree, and disposes of the whole case. Onited States (art. 4, $ 1), and the Acts of Congress Campbell v. James, 31 Fed. Rep. 5:25. of May 28, 1790, equally conclusive in every other A judgment of dismissal, if set up as a plea in bar State in the Union This is the declared doctrine to a new bill for the same cause, is conclusive, if of this court. North Bank v. Brown, 50 Me. 214; the dismissal was upon the hearing and was not in Sweet v. Brackley, 53 Me. 346. See Peters v. San- direct terms “without prejudice." Lyon v. Perin ford, 1 Denio, 924; Nicholl v. Mason, 21 Wend. 339. & G. Mfg. Co. 125 U. 8. 698 (31 L. ed. 839).

The same doctrine is beld by the Supreme Court A decree in these words, “The plaintiff failing to of the United States. Mutual L. Ins. Co. v. Harris, prosecute his suit, it is ordered that the same be 97 U. S. 331 (24 L. cd. 959).

dismissed,"-in a final decree, and therefore, after A decree rendered in a court of one State is con- the end of the term, can be set aside only on appeal trolled by a prior decree rendered between the same or bill of review within the statutory period. Jones parties and upon the same subject matter in an. v. Turner, 81 Va. 709. other State, although the suit in which the former In un action for breach of contract before a jus. decree was rendered was instituted first. Memphis tice, he cannot, after entering a judgment dismiss & C. R. Co. v. Grayson (Ala.) 7 So. Rep. 122.

ing the suit for failure to prove execution of the Previous adjudication of the state court upon the contract, by adding the words, "without prejudice meaning of a statute, in a similar case between the to a new suit," authorize a new suit for the samo same defendant and the State, where the constitu- cause of action; but that matter is res judicata. tiopality of the Act was not drawn in question,-Parsons v. Riley (W. Va.) 10 S. E. Rep. 806. that it constituted a contract between the defend- If the decree is final then its result is to mergo ant and the State.-did not estop the State from de- the original cause of action, as was remarked in the nying its constitutionality in a subsequent case, or case of Barnes v. Gibbs, 31 N. J. L. 319. conclude the court upon that question, although

When not final. the point might have been raised and determined in the first instance. Boyd v. Alabama, 94 U. 8. 645 A dismissal of a suit for want of parties does not (24 L. ed. 302.

make the subject of controversy res judicata. St. Where a prior judgment involved the construc- Romes v. Levee Steam Cotton-Press Co. 127 U. S. tion of a statute, no different state of facts will au. 614 ( 2 L. ed. 289). thorize such construction to be subsequently A judgment of dismissal without prejudice to an. changed as between the parties to it or their privies. other action is no bar to another action upon the West:rn Teleg. Co. v. Baltimore & 0. R. Co. 12 Cent. same cause. Gunn v. Peakes, 36 Minn. 177; Payne Rep. 878, 69 Md. 211.

v. Grant, 81 Va. 164. While the judgment of the Vermont court, ren- The dismissal of a party defendant, at the instanco dered under such circumstances, is of no force of plaintiir, before trial, where no counterclaim is against the person of the debtor, it may be binding made, is not a judgment upon the merits. James against bis property, as a proceeding in rem, if his v. Leport, 19 Nev. 174. property came within the jurisdiction, and was dis- So where plaintiff failed in his first action from posed of by the judgment of the Vermont court, I the omission of an essential allegation, the dismissal according to the laws of that State; and if such was not a trial on the merits. Gilmer v. Morris, 30 judgment is binding and conclusive in the State in Fed. Rep. 476. which it is rendered, it is binding and conclusive everywhere. If once executed, that execution will

As to what matters conclusive. be respected. Gray v. Delaware & H. Canal Co. 5 When a matter in issue between the parties has Abb. N. C. 135; Cochran v. Fitch, 1 Sandf. Ch. 142; once been judicialiy determined by a court of com. Embree v. Handa, 5 Jobns. 101; Burrows v. Miller, petent jurisdiction, it cannot again be the subject 5 How. Pr. 51; Donovan v. Hunt, 7 Abb. Pr. 20; of coutroversy between such parties or those in Andrews v. Herriot, 4 Cow. 521; 1 Kent, Com. 200, privity with them, so long as such adjudication re261, note b; 2 Kent, Com. 119.

mains in force. Magnus v. Sleeper, 69 Wis. 219.

A fact which bas been directly tried and decided Judgment must be final and on the merits.

cannot be contested again collaterally between the A judgment, to be a bar to further litigation, same parties in the same or any other court. Hope must have been final and rendered as to all the king v. Lee, 19 U. S. 6 Wheat, 109 (5 L. ed. 218); Pen. merits of tbe cause. Garrett v. Greenwell, 10 West. hallow v. Doane, 3 U. S. 3 Dall. 54 (1 L. ed. 507); El. Rep. 351, 92 Mo. 120.

liott v. Piersol, 26 U.S. 1 Pet. 328 (7 L. ed. 161); Ex Where the court has jurisdiction its judgment is parte Watkins, 28 U.S. 3 Pet. 193 (7 L. ed. 650); United fipal. Authorities cited in Chicago & N. W. R. Co. States v. Nourse, 34 U. S. 9 Pet. 8 (9 L, ed. 31); Bank v. People, 9 Weat, Rep.154, 120 III. 104.

of U. S. v. Beverly, 42 U.S I How. 134 (11 L. ed. 75). A judgment of dismissul in pursuance of agree- Randull v. Howard, 67 U.S. 2 Black, 585 (17 L. ed. ment, reciting a settlement and that nothing is due 269); Parrish v. Ferris, 67 U. 8. 2 Black, 606 (17 L. ed. the plaintiff, is a bar to a subsequent action. United 317); Florentine v. Barton, 69 U. 8.2 Wall. 10 (17 L. States v. Parker, 120 U, S. 89 (30 L, ed. 601).

ed. 783); Cromwell v. Sac Co. 94 U.S. 351 (24 L. ed. An order dismissing a bill and amended bill of 195); Russell v. Place, 94 U. S. 606 (24 L. ed. 214);

action for a sum subsequently falling due, when | A judgment or final order in an action or the former judgment was for the plaintiff. special proceeding before a court or judge of

Bigelow, Estop. 3d ed. p. 45; Duncan v. this state, or of the United States, haviug jurisBancroft, 110 Mass. 207.

diction to pronounce the judgment or order, The estoppel, if any, extends only to ques- is, in respect to the matter directly adjudged, tions of fact decided, and not to ques ions of conclusive between the parties. law.

Code Civ. Proc. $ 1908. Bigelow, Estop. 3d ed. p. 57; Bernard v. The principle is the same whether the issue Hoboken, 27 N. J. L. 412: Tromwell v. Sic Co. is one of law or fact. 94 U. S. 351 (24 L. ed. 195); Freem. Judgm. Bouchaud v. Dias, 3 Denio, 238; Ferrer's 88 253, 256.

Case, 6 Coke, 7 a; Aurora v. West, 74 U. S. Messrs. O'Brien & Morrison, for re- 7 Wall. 84 (19 L. ed. 42); Stewart v. Stebbins, spoodent:

30 Miss. 66; Kingsland v. Spaulding, 3 Barb.

Hornbuckle v. Stafford, 111 U. S. 383 (28 L. ed. 468); | Cromwell v. Sac Co. 94 U. S. 351 (24 L. ed. 195); Bryan v. Kennett. 113 U. S. 179 (23 L. ed. 908).

Davis v. Brown, 94 U, S. 423 (24 L. ed. 204); Russell If the first judgment involved the whole claim or v. Place, 94 U. S. 606 (24 L. ed. 214). the whole subject matter, and settled the entire de- To constitute a bar, it must appear by legal evifense to a whole series of claims, then the first dence that the matter involved was determined by judgment operates as an estoppel to the whole. the former suit. Smith v. Brunswick, 6 New Eng. Kilander v. Hoover, 9 West. Rep. 244, 111 Ind. 10. Rep. 417, 80 Me. 189.

The rule is well settled that a former judgment It is not sufficient to show that it may have been of a court of competent jurisdiction is final and determined by the former suit. Ibid. conclusive between the parties, not only as to the Hence it is settled tbat a verdict and judgment matter actually determined, but as to every other of a court of record, or a decree in chancery, puts matter which the parties might have litigated and an end to ail further controversy concerning the have decided as incident to or essentially connected points thus decided between the parties to the suit. with the subject matter of the litigation within the Hopkins v. Lee, 19 U. S. 6 Wheat. 109 (5 L. ed. 218); purview of the original action, either as matter of Pierson v. Catlin, 18 Vt. 77; Nations v. Jobnson, 65 claim or defense. Pray v. Hegeman, 98 N. Y. 351; U. S. 24 How. 195 (16 L. ed. 6:28); Coit v. Tracy, 8 Jordan v. Van Epps, 85 N. Y. 66; Smith v. Smith, Conn. 268; Foster v. The Richard Busteed, 100 Mass. 79 N. Y. 694; Clemens v. Clemens, 37 N. Y. 74; Griffin 409; Winans v. Dunham, 5 Wend. 47; 2 Wharton, v. Long Island R. Co. 3 Cent. Rep. 740, 102 N. Y. 449. Ev. $ 774; Freeman, Judgm. 9 248.

To ascertain what might have been determined in the former action, it is proper to look, beyond

Of what facts conclusive what appears on the face of the judgment, to every A judgment rendered, while it remains in force, allegation which, having been made on one side and is conclusive of all the facts properly pleaded by denied on the other, was at issue and determined in the plaintiffs. Washington, A. & G. Steam Packet the course of the proceedings. Clemens v. Clemens, Co. v. Sickles, 65 U. S. 24 How. 833 (16 L. ed. 650). supra.

It is not necessary, as between parties and priv. The fact that no proof was brought on a certain ies, that the record sbould show the question upquestion, or that point actually ruled, does not pre- on which the right of the plaintiff to recover or the vent it from being res judicata if the precise matter validity of the defense depended, but only that the was involved, or had of necessity to be decided in same matter in controversy might have been liti. giving judgment. Faust v. Faust (S. C.) 10 S. E. Rep. guted. Ibid. 262.

So far as the principal defendant is concerned, it To constitute an estoppel by judgment, matters is established that the judgment of a domestio in issue anel points actually determined must have court of record, proceeding according to the course been identical with those presented as a delense to of the common law, is conclusive evidence of all the second suit. Kilander v. Hoover, 9 West. Rep. the facts decided in subsequent suits between the 244, 111 Ind. 10.

same parties; and that tbe only remedy of a party That the cause of action in two cases is the same who has been injured by a judgment erroneously is the test by which it is determined that the judg. rendered is by review or by proceeding to reverse ment in one is a bar to the other.

Brooke v. Logan, the same upon a writ of error. The party plaintiff 11 West. Rep. 352, 112 Ind. 183; Williams v. Hay, 12 is not allowed to treat a judgment, lawfully obo Cent. Rep. 6:2, 120 Pa. 485.

tained by him, from a court of coinpetent jurisdioTo ascertain what might have been determined ittion, as a nullity, nor to proceed upon his original is proper to look beyond the terms of the judgment demand as if it had not been rendered. While it and consider the allegation made and traversed. I exists he can only proceed by suit op his judgment But tbe findings and the judgment generally show or levy of execution. These principles apply to what was determined, and are conclusiv on that judgments ndered by courts such as the Second subject. Grislin v. Long Island R. Co. supra. District Court of Bristol County. Loring v. Bridge,

A decree does not bar a suit for a different cause 9 Mass. 124; Cook v. Darling, 18 Pick. 393; Hendrick of action arising afterward. Chapman v. Good- v. Whittemore, 105 Muss. 23; Wood v. Mann, 125 ROW, 123 U. S. 540 (31 L. ed. 235).

Mass. 319; Fogel v. Dussuult, 2 New Eng. Rep. 331, In such case the inquiry must always be as to the 141 Mass. 154. point or question collaterally litigated and deter- A recital in a judgment that notice has been mined in the original action. Authorities cited in given to all the persons interested is not conclu. Riverside Co. v. Townshend, 10 West. Rep. 581, 120 sive of that fact. Gilman v. Healy, 46 Hun, 310. Ill. 9.

A recitau in a judgment that service was made on In a subsequent suit, parol evidence to show what defendant is not conclusive as to such service, and was tried in the tirst suit is admissible, if the record defendant may show by extrinsic evidence that no leaves the matter in doubt. Campbell v. Rankin, service was made. Thorn v. Salmonson, 3. Kan. 441. 99 U. S. 261 (25 L ed. 4351; Washington, A. & G. A decree reciting that defendants were duly noSteam Packet Co. v. Sickles, 65 V. S. 24 How. 333 titled by publication is conclusive that the order (16 L. ed. 650 ; Miles v. Caldwell, 69 U. S. 2 Wall. 35 of publication was duly published in the designated (17 L. ed. 755); Washington, A. & G. Steam Packet newspaper, but is not conclusive that the order Co. v. Sickles, 72 U. 8. 6 Wall. 500 (18 L. ed. 550); I was sufficient or that affidavit for publication was Ch. 341. See Bloodgood v. Grasey, 31 Ala. 575; | Forbes v. Reilly, 57 Cal. 303 ; Shinn v. Young, Goodrich v. Chicago, 72 U. S. 5 Wall. 566 (18 Id. 5:15 ; Parnell v. Jahn, 61 Cal. 131 ; Santa L. ed. 511); 2 Smith, Lead. Cas. 8th ed. pp. 912– Cruz Gap T. Co. v. Santa (laru 10. 62 Cal. 944; Beloit v. Morgan, 74 U. 8.7 Wall. 619 40 ; McCreery v. Fuller, 63 Cal. 30; Peterson (19 L. ed. 205); Wilson v. Dean, 121 U. S. 525 v. Weissbein, 80 Cal. 38 (30 L, ed. 80); Bissell v. Spring Valley Twp. The judgments of the ordinary domestic 124 U. S. 225 (31 L. ed. 411); Freem. Judgm. courts of inferior jurisdiction are equally con&S 246, 253; Love v. Waltz, 7 Cal. 252 ; Gray clusive with the judgments of the superior V. Dougherty, 25 ('al. 266; People v. San Francourts, provided it appears from the record cisco, 27 Cal. 655; Garicond v. Garwood, 29 that the court had acquired jurisdiction of the Cal. 514; Jackson v. Lodge, 36 Cal. 37; Lynch cause. v. Kelly, 41 Cal. 232; McCullough v. Clark, Bigelow, Estop. 3d ed. p. 20; Freem.Judgm. Id. 299; Linehan v. Hathaway, 54 Cal. 253; 3d ed. & 524 ; Wells, Res Adjudicata, $ 428;

filed. Adams v. Cowles, 14 West. Rep. 779, 95 Mo. Both parties, having consented to litigate, are 601.

bound by the judgment. Helck v. Reinheimer, 7 Recitals in the record of a court of limited and Cent. Rep. 743, 105 N. Y. 470. special authority are prima facie cvidence of the The judgment of a state court declaring that a facts recited, to show the jurisdiction of the court. debt is null and void as against a certain party, and Comstock v. Crawford, 70 U. S. 3 Wall. 398 (18 L. equally void as a contract to convey, is conclusive ed. 34),

between the parties and those in privity with them If a justice's judgment recites the due service of in a suit in a circuit court. Minneapolis Agr. & M. process, or other facts necessary to give jurisdic- Asso. v. Canfield, 121 U. 8. 295 (30 L. ed. 962). tion of the person, the general rule will apply that A judgment is conclusive against a person who in a collateral proceeding such recital in the record was responsible over to defendant, if he had notice imports absolute verity and cannot be contradicted. of the action and an opportunity to defend. Davis Deck v. Martin, 75 Tex. 469.

v. Smith, 4 New Eng. Rep. 663, 79 Me. 351. Where a record is perfect on its face, evidence The notice may be implied wben he had knowl. cannot be let in to contradict and overthrow it in edge of the suit and participated in its defense. a collateral proceeding. Erwin v. Lowry, 48 U. 8. Ibid. 7 How. 172 (12 L. ed. 655).

Where one not named as a party is represented To make a record of a former adjudication evi- by one who is a party and under whom he claims, dence in a subsequent case, not only the subject and puts in an answer in the name of such party, matter, but the parties, must be the same Good- and pays part of the expenses of litigation, he is win v. Snyder (Wis.) 41 N. W. Rep. 746.

bound by a decree therein. Plumb v. Goodnow, It must appear, either upon the lace of the record 123 U. S. 560 (31 L. ed. 208), or by extrinsic evidence, that the precise question

The fact that the United States was party to a was raised and determined in the former suit judgment in reference to a title to land will not Russell v. Place, 94 U. S. 606 (24 L. ed. 214); Wash - make it binding upon a citizen whose connection ington, A. & G. Steam Packet Co. v. Sickles, 65 U. with the ca e is not shown. Barton v. Long, 12 8. 24 How. 333 (16 L. ed. 650); Cromwell v. Sac Co. 94 Cent. Rep. 818, 45 N.J. Eq. 845. U. 8. 351 24 L. ed. 195); Davis v. Brown, 94 U. 8. 123 A judgment is only presumptively conclusivo (24 L. ed. 204).

against parties in the character in which bey suo If there is a total want of jurisdiction, the pro- or are sued. Authorities cited in Adair v. Merceedings are not merely voidable, but void, and gentheim, 13 West. Rep. 853, 114 Ind. 303; McBurnio may be rejected when collaterally drawn ip ques. v. Seaton, 9 West. Rep. 20, 111 Ind. 56; Lord v. Wil tion. Rose v. Himely, 8 U. 8. 4 Cranch, 241 (2 L. cox, 99 Ind. 491; Erwin v. Garner, 6 West. Rep. 903, ed. 608); Griffith v. Frazier, 12 U. 8. 8 Cranch, 9 13 L. 108 Ind. 488; Bumb v. Gard, 8 West. Rep. 209, 107 ed. 471); Elliott v. Peirsol, 26 U. &. 1 Pet. 328 (7 L. ed. Ind. 575; Freem. Judgm. 156. 164); Thompson v. Tolmie, 27 U. 8. 2 Pet. 157 (7 L.

Who not bound. ed, 381); Voorhees v. Bank of U. S. 35 U. S. 10 Pet. 449 19 L. ed. 490); Wilcox v. M'Connell, 38 U. S. 13 A judgment is not a bar against a party sought to Pet. 493 (10 L. ed. 260); Shriver v. Lynn, 43 U. S. 2 be defrauded tbereby. Biddle y. I'omlinson, 7 How. 43 (11 L. ed. 172); Hickey v. Stewart, 44 U. S. 3 Cent. Rep. 838, 115 Pa. 299. How. 750 (11 L. ed. 814); Williamson v. Berry, 49 U. But a judgment cannot be assailed on the ground B. 8 How. 495 (12 L. ed. 1170).

of fraud, by one who was not a necessary party to A judgment in form procured upon a mere the action, or a party in fact. Van Gorder v. feigned controversy is a nullity, and no writ of er- Hanna, 72 Iowa, 572. ror will lie upon it. Lord v. Veazie, 49 U. 8.8 How. In general, judgments and decrees are evidence 251 (12 L. ed. 1007).

only in suits between parties and privies. Barr v.

Gratz, 17 U. S. 4 Wheat. 213 (4 L. ed. 553); Tappan v. As to whom conclusive.

Beardsley, 77 U. S. 10 Wall. 427 (19 L. ed. 974); Litch. An estoppel by judgment is equally conclusive field v. Goodnow, 123 U. 8. 549 (31 L. ed. 199); Plumb apon all the parties to the action and their privies, v. Goodnow, 123 U. 8.500 (31 L. ed. 268). į and may not be invoked or repudiated at the pleas- As to one not a party, a judgment is an absolute

ure of one of them, as his interest may require. Dullity, and custs no cloud on his title, and aifords Brooklyn City & N. R. Co. v. Nat. Bank of the Re- no ground for an action by bim to set it aside. public, 102 U. 8. 14 (26 L. ed. 61); Commercial Union Fontaine v. Hudson, 11 West. Rep. 466, 93 Mo. 62. Assur. Co. v. Scammon, 10 West. Rep. 340, 126 IU. A decree against one not named in the bill, and 861.

against whom no process of relief is prayed, and But the adjudication to have that effect requires who is in no wise comprehended in its general allethat the questions be identical. Ibid.

gations, is a nullity. Ogden v. Duvidson, 81 Va. 757. Only parties and privies in blood or estate are A judgment is not binding upon persons not estopped by a judgment. Orthwein v. Thomas, 11 cited or made parties to it. Gilman v. Healy, 46 West. Rep. 399, 127 TU. 554.

Hun, 310. Privjes in blood or estate who are estopped by a Where a petition prays for relief and is virtually Judgment are those who derive title to the proper- a cross-bill, decrees based upon it are of no effect ty by descent or purchase. Ibid.

against those who were never summoned to answer

1 Herman, Estop. $ 352, pp. 403-405; Hal. like those in Stohr v. San Francisco M. Fund SaLock v. Dominy, 69 Ñ. Y. 238 ; Mitchell v. Har ciety, 82 Cal. 557 (filed January 22, 1890), which ley, 4 Den. 414; Bouyer v. Schofield, 1 Abb. is against the same defendant. After the pas. App. Dec. 181, 2 Keyes, 628; Bachman

v. N. Y. sage of the by-law limiting the amount of Deutscher Arbeiter Fund, 12 Abb. N. C. 54, benefits, and the payments in accordance there 64 How. Pr. 442; Candee v. Lord, 2 N. Y. with, the defendant refused to pay anything 274; Hall v. Stryker, 27 N. Y. 603; Burgess further; and within a few months thereafter v. Simonson, 45 N. Y. 227; Carpenter v. 08. the plaintiff commenced an action in the jusborn, 102 N. Y. 552, 3 Cent. Rep. 804; Grif. tice's court to recover the installments then tin v. Long Island R. Cn. 102 N. Y. 442; Gates claimed to be due. Judgment was given in v. Preston, 41 N. Y. 113; Edwards v. Stewart, his favor, and the Society appealed to the su. 15 Barb. 67; Doty v. Broron, 4 N. Y. 71, 53 perior court, where, after a trial on the merAm. Dec. 350 ; Cumberland Coal & Iron Co. v. iis, a similar judgment was rendered. The Jeffries, 27 Md. 534; Foster v. Konkright, 70 court below held this judgment to estop the Ind. 123; Cooksey y. Kansas City, 8. J. & C. defendant from maintaining the defense preB. R. Co. 74 Mo. 477; Reid v. Spoon, 66 N. sented here, and we think that this ruling was C. 415; Brunhild v. Freeman, 80 N. C. 212 ; correct. It affirmatively appears that the matMcClelland v. Patterson (Pa.) 5 Cent. Rep. 734; ters which are presented here were litigated Reg. v. Yorkshire, 1 Ad. & El. N. S. 625. and decided in the former action. There, as

here, the main defense was that the by-law of Hayne, C., delivered the following opin- 1883 limited the amount of benefits to be paid ion:

to the plaintiff. The court decided that the Tbis was an action to recover certain "sick defendant had no power to impose such a benefits." The general features of the case are limitation. The only difference between the

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It or who were not properly before the court v. Edgerton, 9 Cow. 227; Brown v. Compton, 8 T. Pracht v. Lange, 81 Va. 711.

R. 424; Hecker v. Jarret, 3 Binn. 410; Prescott v. One not a party, or privy to a parly, to an action, Hull, 17 Johns. 290; Holmes v. Remsen, 20 Johns cannot, as between himself and the plaintiff, be 268, 4 Johns. Ch. 460, and the cases there cited; HObound by the result, or claim that the plaintiff is mer v. Fish, 1 Pick. 435; Saxton v. Chamberlain, 6 bound by it, on the ground that he was the real Pick. 422; Minor v. Walter, 17 Mass. 237. See also defendant in interest and conducted the defense, Livermore v. Herschell, 8 Pick. 33; Whitcomb v. unless he did so openly and to the knowledge of Williams, 4 Pick. 228; Adams v. Pearson, 7 Pick. the plaintiff and for the defense of his own inter- 341, 19 Am. Dec. 290; New England Bank v. Lewis, ests. Cannon River Mfrs. Asso. v. Rogers (Minn.) 8 Pick. 113. 3 N. W. Rep. 792.

A judgment of a court of general jurisdiction is Strangers to a judgment by confession are not conclusive until reversed upon appeal. Authoriconcluded by its date or by its recitals. They may, ties cited in People v. New York Catholic Proteoupon a complaint setting forth specific averments tory, 9 Cent. Rep. 419, 106 N. Y. 604. of fraud, introduce oral, as well as documentary Bo a decree of a court of competent jurisdiction and record, evidence. Schuster v. Rader (Colo.) 22 in a suit between proper parties is valid and conPac. Rep. 505.

clusive until reversed on some proper proceedings Judgments bind parties and privies, but they do in the same suit and in the same court, or on apnot bind strangers. Sessions V. Johnson, 95 U. S.. peal, unless there be some sufficient ground of 847 (24 L. ed. 596); W. B. v. Latimer, 4 0. 8. 4 Dall. fraud or surprise to entitle the injured party to reAppx. i (Ct. Err. & App. Del.) (1 L. ed. 915); Simms lief in some other suit. Fox v. Cottage Bldg. Fund v. Guthrie, 13 U. S. 9 Cranch, 19 (3 L. ed. 642); Hol. Aeso. 81 Va. 677. lingswoth v. Barbour, 29 U. S. 4 Pet. 466 (7 L. ed. The fact of being a party to a judgment or decreo 922); Gaines v. Relf, 53 U. S. 12 How. 472 (13 L. ed. does not estop a person from obtaining, in a court of 1071); Smith v. Orton, 131 U. 8. App. LXXV. (18 L. equity, relief against fraud in obtaining it. Johned. 62); Nichol v. Levy, 72 U. 8.5 Wall, 433 (18 L. ed. son v. Waters, 111 0. 8. 640 (28 L. ed. 547); League 596); E.r parte Howard, 76 U. S. 9 Wall. 175 (19 L. ed. v. De Young, 52 U. $. 11 How. 185 (13 L. ed. 657); 634; Williams v. Bankhead, 86 U. 8. 19 Wall. 563 (22 Webster v. Reid, 52 U. 8. 11 How. 437 (13 L. ed. 761). L. ed. 184); Humes v. Scruggs, 94 U. 8. 22 (24 L. A determination in a statutory proceeding for ed. 51),

the adjustment of an encroachment upon a publio A judgment is no evidence as against a stranger road is, until set aside, a bar to a subsequent in. to it. Hartman v. Weiland, 36 Minn, 223.

vestigation before the same tribunal. State v. Those who are neither parties, privies nor pur- Briggs, 10 Cent. Rep. 178, 50 N. J. L. 114. chasers pendente lite are not bound by a former de- A summary conviction by a magistrate is concree. Kerr v. Watts, 19 U. 8. 6 Wheat. 550 (5 L. ed. clusive until reversed on appeal. People v. New 328).

York Catholic Protectory, 9 Cent. Rep. 417, 106 N. A decree making void an agreement and a judg. Y. 604. ment operates only between tbe parties to the ac

The appointment of an under tutor is proof of tion, and does not make the agreement and judg. his capacity, and is binding upon third persons ment void as to other parties or bar the latter in until set aside by appeal or in an action of nullity. another action. Graham v. La Crosse & M. R. Co.

Keller's Succession, 39 La. Ann. 579. 70 U. 8. 3 Wall. 704 (18 L. ed. 247).

When the record shows that the under tutor was Judgments, though erroneous, binding till reversed. adjudicatee cannot, on the ground of the alleged

appointed by a court of competent jurisdiction, an Where the court has jurisdiction both of the illegality of the appointment of such tutor, set up cause and the parties, and proceeds erroneously, the nullity of the proceedings leading to the sale. the judgment, notwithstanding the error, is bind. Ibid. ing, until it is vacated or reversed. Rodgers v. Benefit and benevolent associations. See Marsh Evans, 8 Ga. 143, 52 Am. Dec. 391; Gorrill v. Whit-v. Supreme Council, Am. L. of H. 4 L. R. A.38%, and tier, 3 N. H. 269; The Case of the Marshalsea, 10 cases referred to in note, 149 Mass. 512; Supreme Coke, 76: Elliott v. Peirsol, 26 0. 8. 1 Pet. 340 (7 L. Lodge, K. of P. v. Knight, 3 L. R. A. 409, and noten ed. 164): Smith v. Shaw, 12 Johns. 257, 267; Latham | 117 Ind. 489.

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two cases is that, by mere lapse of time and R. & Nao. Co. 27 Fed. Rep. 278; Kennedy tbe continuance of the plaintiff's sickness, new v. McCarthy. 73 Ga. 346 ; Cleveland v. Credis. installments bave become due.

ton, 93 Ind. 31; Furneaux v. First Nat. Bink, It is quite true, as stated by Chief Justice 39 Kan. 144 ; Gardner v. Buckbee, 3 Cow. 120; De Grey in the Duchess of Kingston's Case 12 Doty v. Brown, 4 N. Y. 71; Bouchaud v. Dias, Smith, Lead. Cas. *574, 7th Am. ed. 610), that 3 Denio, 238. a judgment is not conclusive “of any matter The fact that the former case was comto be in ferred by argument from the judg- menced in the justice's court makes no differment." But bere the invalidity of the by-law ence. That court had jurisdiction ; and, when was the ultimate point involved, and it was a court which has jurisdiction renders a valid actually litigated and decided, wbich circum- julgment, such judgment is as bindiog as any stance distinguisbes the case from Cromwell v. other. But, however this may be, the case Sac Co. 94 U. S. 351 (24 L. ed. 195), cited for was retried on its mcrits in the superior court, the appellant. The preponderance of author- and the judgment relied upon was entered ity is in favor of the respondent's position that there, and is a judgment of that court. We in such a casc tbe judgment is conclusive in an therefore advise ibat the judgment and order action for subsequent installments. Robinson appealed from be affirmed. v. Horart, 5 Cal. 428; Love v. Waltz, 7 Cal. We coacur: Van Clief, C.; Foote, C. 250 ; Outram v. Morewood, 3 East, 346; Au. rora v. West, 74 U. S. 7 Wall. 96 (19 L. ed. Per Curiam: 47]; Bissell v. Spring Valley Trop. 124 U. S. 225 For the reasons given in the foregoing opin(31 L. ed. 411] ; Smith v. Ontario, 18 Blatchf. ion, the judgment and order appealed from aro 454, 4 Fed. Rep. 386; Laird v. De Soto, 32 affirmed. Fed. Rep. 652 ; Oregonian R. Co. v. Oregon


William REESE, Appt.,

ure of a telegraph company to deliver a message 0.

sent to a person residing within a certain distance WESTERN UNION TELEGRAPH CO.

of its office is fatally defective if it does not stato that the person to whom the telegram was ad

dressed resided within the prescribed distance (......Ind.......)

from the office. 1. The complaint in an action to recover 2. Mental anguish caused by the failure to

the penalty provided by statute for the fail. reach the bedside of a person sick upto death bo

NOTE.-Telegraph company: damages for neglect and to render it liable for damages for mental sufto deliver mereage.

fering in consequence of such failure. W. U. Delay in delivering a telegram stating the death Teleg. Co. v. Moore (Tex.) 12 S. W. Rep. 949. and time of burial of a person referred to merely

Measure of damages for neglect. as " Willie," without potice of bis relation to the Where, by a telegraph company's negligent de person aduiessed, will not subject the company to lay in transmission and delivery to a sister of mesan action for damages based solely on injury to eages informing sier of the serious illness, and, fraternal feelings from inability to attend the later, of the death, of ber brother, she is denied the funerul. W. U. Teleg. Co. v. Brown, 2 L. R. A. 766, opportunity of attending him and making prepara71 Tex. 723.

tions for his funeral, the damages may include such Telegraph companies are required to take notice sum as will compensate for the grief, disappointof whatever the dispatch guggests. and if fuller in- ment and other injury to her feelings. Wadsworth formation is needed they must seek it, or be held v. W. U. Teleg. Co. 86 Tenn. 695. to possess all the knowledge such inquiries could In case of breach of contract to deliver a message have elicited. Western U. Teleg. Co. v. Edsall, 74 the company is liable for damages for both mental Tex. 329.

and physical suffering caused thereby. Stuart v. A telegraph message as follows, “Come on first W. U. Teleg. Co. 66 Tex. 580. train. Bring Ferdinand. His father very low."- In the entire absence of gross or willful neglie is not sufficient to suggest a near relationship be- gence in delaying the transmission of a telegram tween the sick man and the person addressed, and as the result of which a husband is deprived of wül not authorize damages for the mental suffer- seeing his wife before death, no punitive damages ing of the latter's wife, in an action for delay in can be recovered. Beasley v. W. U. Teleg. Co. 89 delivering the message whereby she was unable to | Fed. Rep. 181. reach her father before his death. W. U. Teleg. Grief occasioned by the death of plaintiff's wife Co. v. Kirkpatrick (Tex.) 13 S. W. Rep. 70.

is no element of damages for neglect to send a teleFailure to disclose the relationship of the parties gram, whereby plaintiff is prevented from seeing to a telegraph company when sending a message his wife; but he can only recover for the disappointstating that a person named is dying, and saying, ment and mental anguish occasioned by the fault * Come quick,” will not prevent a recovery of dam. or negligence of the company. Ibid. ages for suffering on account of the inability of the In an action against a telegraph company for a receiver to be with a dying brother because of de- failure promptly to deliver a message, damages for lay in delivering the message. W. U. Teleg. Co. v. mere continued anxiety caused by such failure aro Adams, 6 L. R. A. 814, 75 Tex. 531.

not recoverable. Rowell v. W. U. Teleg. Co. 75 A telegraph message delivered for transmission, | Tex. 20. saying, “ Billie is very low; come at once,” is suf. A verdict for $1,000 damages will not be held ex. ficient to reasonably apprise the company of the cessive on appeal, in an action against a telegraph consequences of a failure to deliver the message, company for a mistake in a message sent by a wo3 L. R. A.

See also 9 L. R. A. 744; 10 L. R. A. 464; 17 L. R. A. 430; 20 L. R. A. 172; 21 L. R. A. 706, 810.

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