I have concurred in the foregoing, but I think it proper to express additional reasons wherefore, in my judgment, the present action cannot be maintained. Our law contemplates that an action for a recovery in a case such as this may be brought either by the personal representative or by all the heirs. In the nature of things, where a pleading expresses the fact that the action is so brought by and on behalf of all the heirs, it is not expected that the defendant can or will controvert such an allegation, except upon the rare chance that he may happen to know of some heir unmentioned and omitted. Otherwise, he is entitled to rest without denial upon the allegation of the complaint, secure in his right to be subjected to the harassment of but one action, and, should recovery be had against him, to go free from further vexation and from being mulcted a second time by payment of the amount of this judgment. Therefore, to my mind, it matters not whether the omitted heir be an unborn child or be a living person. In the case where the defendant has suffered and paid judgment, he may plead that judgment in bar to any future action, because the judgment itself could not have been given against him, excepting *Page 486 upon the implied finding, necessarily made by the court in rendering judgment, that the action had been prosecuted by and on behalf of all the heirs. To this the answer may well be made that, in the case of an unborn or a minor child, a fraud will have been perpetrated upon it, and this is true; but the redress for this fraud does not lie in an action against the innocent party defendant who has once paid a judgment for his tort, but it lies against the fraudulent plaintiffs, and the omitted heir must seek his redress and recovery against them. In this case the child's right lies in an action against her mother for her fraud in omitting her as an heir in the action which she brought against defendant.