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Talbot, J., dissenting.

successors in interest of litigants always be sufficiently protected by any judgment the court may enter, even in the absence of, and without notice to, the parties concerned, and without any pleadings or showing of any action on their part, if they and their estates are to be bound after the original litigants, their attorneys, and all present in court by whom the matter litigated can be proved are dead? All the attorneys then residing in the state who appeared for the various parties in the original case, as well as Martin Gulling, have since died. One or two text-writers without considering all the distinctions made by the courts or mentioning statutory provisions which may control in a few states, and while admitting that the authorities are conflicting, assert that the parties ought to be bound by a judgment based on matters which they have litigated, but which were not put in issue by the pleadings. Regarding this question, Mr. Black in his work on Judgments, wherein he cites with approval Sherman v. Dilley, 3 Nev. 24, decided in 1867, appears oblivious to the provisions of our practice act approved on March 8, 1869, two years after that case was decided. The decision was by only two of the justices, and was rendered, it would seem, after the court had changed its opinion, and while it was not entirely certain regarding the position taken. It was said in the decision: "By the former opinion of a majority of the court in this case, the judgment of the lower court was reversed, and a new trial ordered. Upon further examination of the authorities, however, I am satisfied that we were incorrect in our conclusions, and that the judgment of the lower court must be affirmed." And, referring to the matter covered by the estoppel: "It is, perhaps, not necessary that it should have been directly and specifically put in issue by the pleadings." The case was essentially different from the one at bar. It was an action to enjoin the diversion of water, and the pleadings in the former suit between the same parties related to certain premises. Under the riparian theory then claimed and the decisions, the water was appurtenant to the land, and it could have been assumed that the complaint and judgment for the premises carried the water with the other appurtenances without mentioning

Talbot, J., dissenting.

them. The opinion seems to have been criticised in another regard in a later one by this court. (Lawson's Nevada Digest, p. 266, sec. 68.) At section 614 of Black on Judgments (2d ed.) the author states: "We have now seen that the estoppel of a judgment does not extend to such matters as come only incidentally or collaterally into the controversy, but only to points actually and necessarily adjudicated. In other words, that a former judgment is conclusive only as to matters in issue or points in controversy, upon the determination of which the finding or verdict was rendered. But what is the 'matter in issue' within the meaning of this rule? Is the test to be furnished solely by the issues framed in the suit, or also by the course and nature of the evidence? Suppose that a question arises on the trial which, per se, has nothing to do with the cause of action, and is not mentioned in the pleadings, but which materially affects the stated issue and must be determined before the issue can be found either way. Suppose, further, that such question, thus becoming necessary to the decision of the cause, is controverted between the parties, and is made the subject of evidence, argument, and instructions, and that its resolution in effect determines the verdict of the jury. Now, is the question to be considered res judicata between the parties or not? Unfortunately the authorities are in conflict upon this subject, and the matter rests in much doubt and confusion." At section 25 of Chand's Treatise on the Law of Res Judicata, he says: "The important question, however, is: What is the matter in issue within the meaning of the rule? And, unfortunately, there is a considerable conflict of authority on that point." Section 428 of volume 2, Van Fleet's Former Adjudication, states that "parol evidence is not competent to show that matters outside of the issues were passed upon."

Extracts from some decisions holding this view are:

That

Davidson v. Shipman, 6 Ala. 33: "The general rule of the conclusiveness of judgments is the one laid down by Chief Justice De Grey, in the Duchess of Kingston's Case. the judgment of a court of concurrent jurisdiction directly upon the point is as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter directly in

Talbot, J., dissenting.

question in another court.' This celebrated judgment has been ever since recognized in England and the United States as a correct exposition of the rule. Some difficulty has, however, been found to exist, and some discrepancies will be discovered upon an examination of the numerous cases on this question as to the mode of ascertaining what was the point in issue between the parties, and whether proof, aliunde, for that purpose is admissible, or whether the point must not appear from the record. See the numerous cases on this head collected, and arranged by Cowen and Hill, vol. 3, Phil. Ev. 826, 848. Necessarily parol evidence must be admitted to identify the subject-matter of the suit. Every fact which exists on record must be proved by the record, but, when the question is as to the real subject-matter of the suit, or to show a bar to another suit, the identity of the cause of action may be proved by other than record evidence.' (Parker v. Thompson, 3 Pick. 429.) See, also, Cist v. Zeigler, 16 Serg. & R. 282, 16 Am. Dec. 573; Robinson v. Windham, 9 Port. 397. A former judgment is a bar only in reference to the subject-matter of the suit, and the points there put in issue and determined. Where, therefore, it is proposed to show, by the record of a judgment, that a certain matter was decided, it must appear from the record that such matter was in issue, and then parol testimony may be admitted to show that the matter was in fact submitted to the jury. If the matter was not within the issue, such testimony is not admissible."

Towne v. Nims, 5 N. H. 259, 20 Am. Dec. 578: "The same principle is applied and illustrated in a great many cases to be found in the books. (Kent v. Kent, 2 Mass. 338; Bank v. Robinson, 2 N. H. 126; Rice v. King, 7 Johns. 20; Kitchin v. Campbell, 3 Wils. 304; Adams v. Barnes, 17 Mass. 365; Tilton v. Gordon, 1 N. H. 33; Rex v. Pancras, Peake's N. P. C. 219; Strutt v. Bovingdon, 5 Esp. N. P. C. 56; Da Costa v. Villa Real, 2 Stra. 961; Smith v. Whiting, 11 Mass. 445; Burt v. Sternburgh, 4 Cow. 559, 15 Am. Dec. 402.) In all these cases the point upon which the judgment was held to be conclusive was directly in issue on the face of the record; and was the foundation of the judgment. The judgment, to be

Talbot, J., dissenting.

conclusive, must be upon the precise point. (2 Stark, Ev. 198–201; Bull. N. P. 244.) It is also a settled principle of law that when a fact, directly in issue on the face of the pleadings, is determined by a jury in one case, the verdict may operate as an estoppel, if properly pleaded, in another suit brought diverso intuitu between the same parties. But to constitute a legal estoppel in such a case, the fact must have been in issue on the face of the pleadings in the first case, and the verdict must be pleaded as an estoppel. (3 Stark, Ev. 1280, note y; Evelyn v. Haynes, cited 3 East, 365; Outram v. Merliwood, Id. 346; Vooght v. Winch, 2 Barn. & Ald. 662; Manny v. Harris, 2 Johns. 24, 3 Am. Dec. 386; Sintrenick v. Lucas, 1 Esp. N. P. 43; Blackham's Case, 1 Salk. 290.)"

Rosema v. Porter, 112 Mich. 14, 70 N. W. 317: "We think it cannot be said that the former judgment is res judicata as to the extent of the defendant's lien upon the horse. The bill of particulars fixed the issue under the general pleadings. This being the case, the record cannot be contradicted by showing that other matter has been adjudicated. (Mondel v. Steel, 8 Mees. & W. 858; Campbell v. Butts, 3 N. Y. 173; Burdick v. Post, 12 Barb. 168; Hatch v. Benton, 6 Barb. 28; Meredith v. Mining Assn., 56 Cal. 178; Green v. Clark, 5 Denio, 497; Jones v. Perkins, 54 Me. 393; Chapman v. Smith, 16 How. 114, 14 L. Ed. 868; 2 Van Fleet, Former Adj. 428; 2 Smith, Lead. Cas. 784.)”

Lewis' and Nelson's Appeal, 67 Pa. 165: "But it is too well settled to need either argument or authority to maintain it that the estoppel of a judgment extends only to the question directly involved in the issue, and not to any incidental or collateral matter, though it may have arisen and been passed upon. This is clearly stated in the language of Lord Chief Justice De Grey in the Duchess of Kingston's Case, 11 Harg. State Trials, 261, 20 Howell's State Trials, 538, 2 Smith, Lead. Cas. 424."

Jones v. Perkins, 54 Me. 396: "There are cases where parol evidence is admissible in aid of the record. *** It is never allowed to contradict or vary the record. (Gay v. Wells, 7 Pick. 217; McNear v. Bailey, 18 Me. 215; Sturtevant

Talbot, J., dissenting.

v. Randall, 53 Me. 149.) The evidence must be confined to the proof of such facts and issues as were, or might have been, legitimately decided under the declarations and pleadings. If otherwise, it might contradict or vary the record. The record is conclusive evidence that the judgment was rendered upon some one or more of the issues legitimately raised by the pleadings of the parties. The parol proof is only to distinguish which of those several issues were decided, or to show that some particular fact was decided in the determination of some of those issues."

Jones v. Davenport, 45 N. J. Eq. 77, 17 Atl. 570: "A decree or judgment on the matter outside of the issue raised by the pleadings is a nullity." And: "Courts can only hear and determine causes on the pleadings actually filed, and not on what parties may agree they shall be."

Campbell v. Consalus, 25 N. Y. 616: "To make such proceedings and judgment thus conclusive, it should have appeared, not only that the amount due on the mortgage was litigated, and found by the referees in such prior action, but it should also have appeared by the record of the judgment in such prior action that the amount due on the mortgage was put in issue by the pleadings in such prior action. (Campbell v. Butts, 3 N. Y. 173; Manny v. Harris, 2 Johns. 24, 3 Am. Dec. 386; Young v. Rummell, 2 Hill, 481, 38 Am. Dec. 594; Burdick v. Post, 12 Barb. 168; Doty v. Brown, 4 N. Y. 71, 53 Am. Dec. 350; Standish v. Parker, 2 Pick. 20, 13 Am. Dec. 393.) Even an agreement between the parties that matters foreign to the pleadings shall be given in evidence and decided by the verdict of a jury will not, it seems, enlarge the operation of a judgment entered on such verdict by way of estoppel. (Wolfe v. Washburn, 6 Cow. 262; Guest v. Warren, 9 Ex. 379; 2 Smith, Lead. Cas. 672.)”

In the opinion by Field, C. J., in Boggs v. Merced Mining Co., 14 Cal. 279, 380, it was held that "a court cannot properly, even upon the consent of the parties, pass upon questions not raised by the written allegations of the pleadings."

Justice Sanderson, speaking for the court, in Garwood v. Garwood, 29 Cal. 521, said: "The judgment of a court having jurisdiction directly upon the point in controversy is, as a

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