#### Clark *v.*Baranowski et al.

*Judgments*— Two *adjudications contrarily decided*— Last *in point of time controls*— Res *adjudicata*— Waiver *by failure to plead or prove.*

1. Where there have been two former actions in which the same issue has been decided contrarily, and where there was an opportunity to set up the judgment rendered in the cause first decided as a bar or estoppel in the action later decided, and a failure or neglect to plead such judgment in the later action, the last adjudication in point of time will control.

2. Where a party to an action desires to avail himself of a former adjudication of the same issue, such former adjudication must be pleaded and proved.

3. The doctrine of *res adjudicata*is a branch of the law of estoppel and may be waived, and a failure or neglect to plead and prove a former adjudication constitutes a waiver.

(No. 18393

Decided December 16, 1924.)

Error to the Court of Appeals of Cuyahoga county.

This case comes to this court from, the Court of Appeals of Cuyahoga county, where, on February 9, 1924, it was heard on error from a judgment of the municipal court of Cleveland, rendered on December 23, 1919. The case in the municipal court was in the nature of a creditor’s bill to marshal liens, and to sell real estate of Baranowski to pay the balance of a judgment in Clark’s favor, which judgment had been rendered in a former action in the municipal court on .September 21, 1917, on promissory notes. In the same suit in which the personal judgment was rendered, an *437order of foreclosure was obtained on a chattel mortgage given by Baranowski to Clark concurrently with the notes, and as collateral security therefor. To the statement of claim in this case Baranowski filed an answer and cross-petition. The answer admitted the recovery of the judgment, the levy of execution, and the levy of the same upon the real estate described in the statement of claim. The cross-petition pleaded *res adjudicata,*and prayed judgment in defendant’s favor and for dismissal of the petition. The detailed facts pleaded in the cross-petition are as follows:

That the action begun in the municipal court, upon which personal judgment and order of foreclosure were entered, was instituted on the 5th •day of July, 1917, in which the plaintiff, Clark, described the notes, the chattel mortgage, the property covered thereby, and prayed judgment for the amount due upon the notes and an order of foreclosure; that in that action Baranowski filed an answer and cross-petition, the answer being a denial of Clark’s claims, and the cross-petition alleging fraud and misrepresentation which induced the execution of the notes and mortgage, and praying that the notes and mortgage be delivered up and canceled, and that the court find that the personal property covered by the mortgage be found to belong to Baranowski free from any claim on the part of Clark, which cause was heard on September 21,1917, and decided in plaintiff’s favor, resulting in personal judgment and decree of foreclosure; that prior to the beginning of said action for judgment and foreclosure Clark had begun an action in the court of common pleas of Cuyahoga *438county, on June 21, 1917, in which, the petition described the notes and the mortgage securing the same, alleging that one note was due, and that plaintiff had elected to consider all notes due, alleged breach of the conditions of the mortgage, and prayed a writ of replevin for the recovery of said personal property and for damages, to which petition Baranowski filed an answer and cross-petition almost identical with the answer and cross-petition in the action in the municipal court, the prayer of which cross-petition was practically identical with the prayer of the cross-petition in the other action; that the ease in the common pleas court for replevin was not heard until March 5, 1918, more than five months after the judgment and order of foreclosure had been rendered in plaintiff’s favor in the municipal court; that Clark went to trial in the court of common pleas without pleading the judgment in his favor as a bar to the relief prayed for in the cross-petition in the common pleas court, and upon trial the judgment in the common pleas court was entered in defendant’s favor, and there was a finding that the representations made by Clark to Baranowski were false and fraudulent, and that the promissory notes and chattel mortgage were void and without force and effect.

To the cross-petition in the instant case the plaintiff Clark demurred, on the ground that the cross-petition did not state a' defense. The municipal court sustained the demurrer, and Baranowski prosecuted error to the Court of Appeals. That court reversed the judgment of the municipal court, and declared that the judgment and order of fore*439closure in the earlier municipal court case were rendered null and void by the later judgment in the court of common pleas. The cause was admitted to this court upon allowance of motion to certify record.

*Mr. D. M. Bader,*for plaintiff in error.

*Mr. Jofm M. Pindras*and *Messrs. Zm/wvt, Mayer & Stephens,*for defendants in error.

Marshall, C. J.

The municipal court had unquestioned jurisdiction to enter the personal judgment and order of foreclosure. It also had jurisdiction over the cross-petition, which sought to have the notes and mortgage declared invalid and canceled. On the other hand, the common pleas court had jurisdiction over the action in replevin to determine the possession and right of possession of the personal property described in the mortgage, and it also had jurisdiction over the issues raised by the cross-petition, and had a right to enter the decree finding the notes and mortgage void, and entering judgment of cancellation.

The petition in replevin involved only possession and right of possession, but the cross-petition praying cancellation of the notes and mortgage raised a much broader issue, and the court, by virtue of the issue so raised, had a right to determine, and did in fact determine, not only that Clark was not entitled to possession, but also that the notes and mortgage were invalid.

In each court the judgment was responsive to the issues raised by the respective cross-petitions; each judgment was within the jurisdiction of the *440court. The earlier decision of the municipal court having declared the notes valid, and the later decision of the common pleas court having declared them to be invalid, and the common pleas court having no knowledge of the earlier decision, this record presents a clear question as to which judgment should prevail.

It is conceded by Baranowski that, if the judgment of the municipal court had been pleaded in the action in the court of common pleas, it would have been a bar to the relief prayed in the cross-petition, and that it would clearly have been the duty of the common pleas court to have sustained that plea.

The Court of Appeals decided and declared in its judgment of reversal that the later judgment is valid, and that the former judgment is null and void, and the correctness of that judgment of reversal is the sole question before this court.

In cases where there is identity of parties and subject-matter, it is the settled law of this state that a former judgment is conclusive between the parties, not only as> to matters actually determined but also as to any other matters which could, under the rules of practice and procedure, have been determined. There was complete identity of parties, subject-matter and issues between the suit in the common pleas and that in the municipal court. This is fully set forth in the cross-petition, and admitted by the demurrer. The doctrine of *res adjudicada,*if applicable and established, treats the former judgment as a final determination, and as speaking the infallible truth as to the rights of the parties in the subject-matter of the controversy, *441[t is treated by the courts as a branch of the law of estoppel, and, like estoppel, may be waived. The former judgment not having been pleaded in the latter trial,' this entire controversy narrows down to the single question whether it was necessary to plead it, and whether the failure to do so amounted to a waiver. More concretely expressed, the question is whether the doctrine of *res adjudicada*is self-executing, and whether the courts are bound to take judicial notice of a former judgment.

This is not a question of first impressions in this state, the identical question having received the attention of this court in two cases where that issue was squarely made, and in another where it was more remotely treated. In the case of *Fanning*v. *Insurance Co.,*37 Ohio St., 344, the second proposition of the syllabus is pertinent and decisive:

> “If the plaintiff relies on a record of a former adjudication of the same matter set up in an answer as an estoppel, he should plead such former judgment. It is not admissible in evidence under a general or special denial of the new matter contained in the answer.”

That case was disposed of on a question of evidence. In the instant case the former adjudication was not in any manner brought to the attention of the trial court.

In the case of *Meiss*v. *Gill,*44 Ohio St., 253, 6 N. E., 656, the following rule was declared in the syllabus:

> “When a party claims a former adjudication of matter set up in an action to be an estoppel, such judgment should be pleaded; and, where the same *442is not pleaded when it can he, it is not evidence conclusive of an estoppel, and testimony may be given to show the truth.”

The opinion in that case cites and quotes with approval a similar proposition, declared in *Howard*v. *Mitchell,*14 Mass., 241. The same principle has been approved in *Seymour*v. *Hubert, 92*Pa., 499; and in *Cherry*v. *York*(Tenn. Ch. App.), 47 S. W., 184. In a later case decided by this court, *Brigel*v. *Creed,*65 Ohio St., 40, 60 N. E., 991, this court discussed the conclusiveness of judgments, and the proposition that a note and mortgage once adjudicated become merged in the judgment and no longer exist as a note and mortgage, and yet in that case the court was careful not to overrule the case of *Fanning*v. *Insurance Co., supra,*and pointed out the distinguishing features. The judgment of the Court of Appeals could not be reversed without overturning the former decisions of this court, and its judgment must therefore be affirmed.

*Judgment affirmed.*

Robinson, Jones, Matthias, Day, Allen, and Conn, JJ., concur.