Church v. Gallic

88 S.W. 979, 76 Ark. 423, 1905 Ark. LEXIS 77

Opinion

McCulloch, J.,

(after stating the facts.) The statute regulating appeals to this court and the practice in disposing of same provides that an appellee may, by motion to dismiss or answer, raise the question of the appellant’s right to further prosecute an appeal. Kirby’s Digest, § § 1227, 1228.

An appellee may plead in this court that since the appeal was taken a court of competent jurisdiction has, by judgment duly rendered, settled against the appellant the.rights asserted in the case on appeal. Pillow v. King, 55 Ark. 633. The fact that the suit on appeal was commenced first in point of time and in a different court from that in which the subsequent judgment was rendered does not obviate the bar in such adjudication. The pendency of the first action might have been pleaded in the second suit in bar of the right to maintain the same, but, if not pleaded, or if, after the plea is amended, judgment upon the merits of the controversy in the second suit is allowed to become final, it is a bar to further prosecution of the first suit.

“The fact that a judgment was obtained after the commencement of the suit in which it is pleaded does not prevent its being a bar. It is the first judgment for the same cause of action that constitutes an effective defense, without regard to the order .of time in which the suits were commenced. Hence it follows that a prior judgment upon the same cause of action sustains the plea, of a former recovery, although the judgment is in an action .commenced subsequent to the one in which it is pleaded.” 2 Black on Judgments, § 791; Finley v. Hanbest, 30 Pa. St. 190; David Bradley Mfg. Co. v. Eagle Mfg. Co., 57 Fed. 980.

In Daniel v. Garner, 71 Ark. 484, this court said: “Under the statutes of this State a defendant, when sued at law, must make all the defenses he has, both legal and equitable. If any of his defenses are exclusively cognizable in equity, he is entitled to have them tried as in equitable proceedings, and for this purpose to a transfer of the cause to the equity, docket or chancery court, as the case may be.” Horsley v. Hilburn, 44 Ark. 458; Reeves v. Jackson, 46 Ark. 272.

A judgment of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the suit. Ward v. Derrick, 57 Ark. 500.

All of the rights and matters asserted in this suit by appellant could have been adjudicated in the ejectment suit, or she could have pleaded the pendency of this suit in bar of appellee’s right to maintain that suit. Having failed to do either, she is barred by the final judgment in that case from seeking further to adjudicate the question in this case. Her right to prosecute this appeal has, on that account, ceased, and the same must be dismissed. It is so ordered.

BaTTrE, J., absent.