§ 186x. Effect as adjudications of proceedings against public § 186y. Res adjudicata against persons not parties nor Persons not parties nor their privies have been held to be 202, 205, 212. See Union & Plant- §186x. 1 Tindal v. Wesley, 167 U. 2 Brandon v. Ard, 211 U. S. 11, 3 New Orleans v. Citizens' Bank, 4 McIntosh v. Pittsburg, 112 Fed. 5 Police Jury v. U. S., 60 Fed. 101 Fed. 665; McEvoy v. New York, 6 Bank of Ky. v. Stone, C. C. A., 7 Bank of Kentucky v. Kentucky, 8 Clagett v. Duluth Tp., C. C. A., § 186y. 1 Calculagraph Co. v. Au- 2 Plumb v. Crane, 123 U. S. 560, they have controlled the defense; 3 when they have defended the suit openly to the knowledge of the adverse party and for the protection of their own interests; but not unless they have exercised some control over the management of the defense or prosecution as the case may be. A decree is not res adjudicata against a stranger who participated in the defense unless it is so far final as to be res adjudicata against the original defendant. The secret payment of the expenses of the defense," unless known to the opposite party, in which latter case the judgment binds the payer, or the public filing of a brief upon appeal, in the first suit, is insufficient; but a party who intervenes upon an appeal will be estopped by the decree.10 3 Farish v. State Banking Board, 235 U. S. 498. 4 Cramer v. Singer Mfg. Co., 93 Fed. 636; Greenwich Ins. Co., v. N. & M. Friedman Co., C. C. A., 142 Fed. 944; Confectioners' Mach. & Mfg. Co. v. Racine Eng. & Mach. Co., 163 Fed. 914; Bemis Car Box Co. v. J. G. Brill Co., C. C. A., 200 Fed. 749; Gilchrist Co. v. Erie Specialty Co., 215 Fed. 741; Rowe v. Hill, C. C. A., 215 Fed. 518; James Clark Distilling Co. v. Western Maryland Ry. Co., 219 Fed. 333; Cushman v. Warren-Scharf Asphalt Paving Co., C. C. A., 220 Fed. 857; U. S. Envelope Co. v. Transo. Paper Co. (D. Conn.), 221 Fed. 79; Gilchrist Co. v. Erie Specialty Co., C. C. A., 231 Fed. 659; Searchlight Horn Co. v. Am. Graphophone Co., 240 Fed. 745. Re Dashiell, C. C. A., 246 Fed. 366; T. L. Smith Co. v. Cement Tile Machinery Co., C. C. A., 249 Fed. 481; Dunscomb v. Chicago B. & Q. R. Co., 246 Fed. 394; Sabine Hardwood Co. v. West Lumber Co., 248 Fed. 123; Deer Island Lumber Co. et al. v. Savannah Timber Co., C. C. A., 258 Fed. 785. Mach. & Mfg. Co. v. Racine Eng. & Mach Co., 163 Fed. 914; Taigman v. Desure, C. C. A., 253 Fed. 364. 6 S. & C. Merriam Co. v. Saalfield & Ogilvie, 241 U. S. 22. 7 Cramer v. Singer Mfg. Co., 93 8 Goodno v. Hotchkiss, 237 Fed. 687; Elliott Co. v. Roto Co., C. C. A., 242 Fed. 941. 9 Stryker v. Goodnow, 123 U. S. 527, 31 L. ed. 194. 10 Martin v. People's Bank, 115 Fed. 226. § 186z. Res adjudicata in suits on behalf of a class. A decree in a suit brought by one on behalf of all of a class of bondholders 1 2 or other creditors or it seems, of any other class, except holders of certificates of membership in an insurance company or association,3 taxpayers, and in certain cases stockholders, does not bind the rest; unless they come in and contribute or prove a claim against the fund in court. A decree in a representative suit brought by some on behalf of all, or against some as representatives of the other members, of a class of holders of certificates of life insurance in an insurance company or association binds them all. So, it has been held, does a decree in a suit brought by one on behalf of all the stockholders as regards their common rights; or to enjoin or set aside a contract made by the corporation." It has been said that where the stockholder does not expressly sue on behalf of the others the decree against him does not bind them. It seems that a judgment in a taxpayer's suit binds all the taxpayers. A person subjects himself to the estoppel of the final decree by proving his claim.10 The doctrine of laches and estoppel may be applied to other members of the class who had notice of the suit and an opportunity § 186z. 1 Wabash R. R. Co. v. Adelbert College, 208 U. S. 38, 58, 52 L. ed. 379, 388; Compton v. Jesup, C. C. A., 68 Fed. 263, 285 (both these cases relate to the same bondholders' suit); Hart v. Globe Ins. Co., 113 Fed. 309 (a creditors' suit); Jackson Co. v. Gardiner Inv. Co., C. C. A., 200 Fed. 113, 117 (a bill filed by stockholders, which was not expressly filed on behalf of the others.) See supra, §§ 114-116. In Helm v. Zarecor, 213 Fed. 648, 653, it was held that a decree of a state court in an action quo warranto to oust a religious body was not res adjudicata in a subsequent suit by members of the religious body on behalf of themselves and the rest against certain members of the former body on behalf of them and the others to determine the right to con trol property held for religious uses. 2 Hart v. Globe Ins. Co., 113 Fed. 109. 3 Hartford Life Ins. Co. v. Ibs. 237 U. S. 622, 671. 4 Gamble v. City of San Diego, 79 Fed. 487. 5 Dana v. Morgan, C. C. A., 232 Fed. 85. 6 Hartford Life Ins. Co. v. Ibs, 237 U. S. 662, 671. 7 Dana v. Morgan, C. C. A., 232 Fed. 85. 8 Jackson Co. v. Gardiner Inv. Co., C. C. A., 200 Fed. 113, 117; Contra, Grant v. Greene Consol. Copper Co., 169 App. Div. (N. Y.) 206, 215. 9 Gamble v. City of San Diego, 79 Fed. 487. 10 St. Louis-San Francisco Ry. Co. v. McElvain, 253 Fed. 123. to intervene.11 The failure to raise the objection of fraud in the first suit does not effect the conclusiveness of the judgment when the latter suit seeks the same relief.12 Neither does the fact that in the first suit acts were repudiated and a trust ex maleficio in consequence thereof sought to be enforced, while the second case is brought to enforce an express trust asserted to have arisen from the same acts which the second plaintiff ratifies, the relief in each being substantially the same.13 The plaintiff in the second suit has the burden of proof that he had no contemporary knowledge of the former litigation.14 It has been held that the doctrine of res adjudicata will be applied to a suit by stockholders to enforce a right of their corporation,15 to a suit by one of those interested in a mortuary insurance fund on behalf of those similarly interested, to establish respective rights of the members thereof.16 § 186zz. Res adjudicata between joint parties. Where parties sue or are sued jointly and there are no cross pleadings between them, the judgment in favor of either or both creates no estoppel between them, as to the duty of contribution or the right to share in the proceeds, unless the record shows that a controversy between them upon the subject was actually raised and determined.1 § 187. Practice upon the defense of res adjudicata. In pleading a judgment or decree, it is not necessary to set it forth, nor the proceedings upon which it was founded, at length,1 but so much of the decree and pleadings should be averred as will show that the same point was in issue,2 together with the commencement and service of process in the former suit, its general character and object, the relief therein prayed, and sufficient 11 Dana v. Morgan, C. C. A., 232 Fed. 85. See 88 183, 185, supra. 12 Dana v. Morgan, C. C. A., 232 Fed. 85. 13 Grant v. Greene Consol. Copper Co., 169 App. Div. (N. Y.) 206. 14 Re Dashiell, C. C. A., 246 Fed. 366. 15 Dana v. Morgan, C. C. A., Fed. 85. 232 16 Hartford Life Insurance Co. v. Ibs. 237 U. S. 662. § 186zz. 1 Bradford v. Meyers, 231 U. S. 725; In City of Owensboro v. Westinghouse, Church, Kerr & Co., C. C. A., 165 Fed. 385. $187. 1 McIntosh v. Pittsburg, 112 Fed. 705. 2 Ricardo v. Garcias, 12 Cl. & F. 368; Story's Eq. Pl., § 783; Mound City Co. v. Castleman, 171 Fed. 520. averments of the facts to show that there is an identity of subject-matter.3 In case of such a plea, under the former practice, the court might require that the decree be pleaded at length, or, if the plea set up matter of record in the same court, that the record be shown before the plaintiff is required to take action upon the plea. It has been held: that profert of the judgment is sufficient. Where a decree in a former suit is introduced in evidence on stipulation without the objection that it has not been properly pleaded, it will be given full effect as a bar.6 A prior decree can usually be put in evidence without having been pleaded where the pleading of the party sets up the facts which were adjudicated by the decree; and the decree is then conclusive evidence of such facts. When the former judgment was at common law, there is no necessity for a preliminary decree in equity to establish the defense. It has been held that where a defendant does not raise the objection in the court of first instance, he waives the defense that two separate actions. cannot be brought upon a single demand. It has been said that. by pleading a defense against a former decree a party waives his right to claim an estoppel under the same.10 But offering evidence of such facts while the former decree was merely interlocutory does not waive the right to claim that it is a bar after it has ripened into a final decree.11 It has been held: that a motion to strike out evidence as to the original cause of action, because this was merged in the judgment, did not preclude the defendant from showing that the judgment was invalid.12 The fact that a decree was interlocutory when the suit was brought does not prevent it from becoming a bar as soon as a final decree 3 Mound City Co. v. Castleman, 171 Fed. 520. 4 Emma S. M. Co. v. Emma S. M. Co. of N. Y., 1 Fed. 39. 5 F. Straus v. Am. Publishers' Ass'n, C. C. A., 201 Fed. 306, 309. 6 Emma S. M. Co. v. Emma S. M. Co. of New York, 1 Fed. 39. 7 David Bradley Mfg. Co. V. Eagle Mfg. Co., 58 Fed. 721; Southern Pac. R. Co. v. U. S., 168 U. S. 1, 57, 42 L. ed. 355, 379. 8 Weber v. Hertzell, C. C. A., 230 Fed. 965. 9 Southern Pac. Ry. Co. v. U. S., C. C. A., 186 Fed. 737. 10 Mack v. Levy, 60 Fed. 751. 11 David Bradley Mfg. Co. v. Eagle Mfg. Co., 57 Fed. 980; Bredin v. National Metal Weatherstrip Co., 147 Fed. 741; David Bradley Mfg. Co. v. Eagle Mfg. Co., C. C. A., 57 Fed. 980. 12 Wayne County Securities Co. v. Hughitt, 228 Fed. 816. |