Kansas & Gulp Short Line R. R. v. Patrons' Co-operative Ass'n

2 Wilson 449

Opinion

Opinion by

Hurt, J.

§ 502. jRes adjudicata; judgment on demurrer is, when. Appellee sued appellant in the county court at the January term, 1884, for precisely the same cause of action as that stated in the petition in this suit. In that suit a general demurrer was sustained to the petition, and appellee gave notice of appeal from said judgment, but subsequently withdrew the same, and the judgment upon the demurrer remained in full force. To the present action, appellant pleaded the said judgment on demurrer as res adjudicata, and introduced in evidence the pleadings and judgment in said former suit, and requested the court to charge the jury in relation thereto, in substance, that if they found the facts stated in the plea to be true, they would find for the defendant. The court refused the charge, and the jury found for the plaintiff. Held, the plea presented a bar to this action, and the requested charge should have been given. [Dixon v. Zadek, 59 Tex. 531; Hale v. McComas, 59 Tex. 484; Nichols v. Dibrell, 60 Tex. 539; Graham v. Vining, 1 Tex. 669.]

Eeversed and remanded.