ON SUGGESTION OF ERROR. Able counsel for appellees have filed a suggestion of error apparently upon the assumption that in our original opinion herein we held that the various prior proceedings pertaining to the subject matter of the present litigation do not and cannot constitute res adjudicata of the questions and issues involved in the case at bar. This is a misconception of the original holding, or, at least, what we intended to hold. We merely decided that the *Page 505 plea of res adjudicata, in the form and substance as filed and presented in this case, did not sufficiently present to the trial judge, and does not sufficiently present to us, the questions and issues involved in such former proceedings, how they were decided upon the merits, and the power and jurisdiction of the tribunals to pass upon them, as that the court can say those prior proceedings are res adjudicata of the questions and rights of the parties in the present litigation and remanded the case. In the original opinion we said [29 So.2d 274, 276] "All of which brings us down to the sole test here, and that is, was there enough before the trial court from which it could derive authority to sustain the plea of res adjudicata . . . In other words, were the judgments exhibited alone sufficient to prove that the merits of the case had been adjudicated in a court of competent jurisdiction? . . ." We will enlarge upon that question. The burden to properly plead and prove the defense of res adjudicata is upon the one invoking it. 30 Am. Jur. p. 997, Par. 283.
In the present proceedings, Viator, in seven paragraphs, set out a number of reasons why he did not owe the tax, and as grounds for recovering the amount he had paid. We quote, for purpose of illustration, one paragraph from his declaration:
"2. The two additional sales tax assessments made against him, for the years 1937 and 1938, are null and void; they were made without jurisdiction, without statutory authority, contrary to the reasons given in Registered Demand, without evidence, contrary to the indisputable character of evidence offered by taxpayer, without the hearing provided by statute, without a report in writing setting forth a review of the cause and the essential facts of the matter, without a finding of basic fact, supported by evidence, and by comparison with the business of other retail merchants done in the year 1939, one and two years, respectively, later than the period for which taxpayer was attempted to be assessed, *Page 506 and by making the additional assessments purposeively (sic) high to take care whatever the Field representatives of the Commission might be able to find." Other questions of fact and legal propositions are raised in the declaration. We will apply to this situation the allegations of the plea.
It first exhibits the order of the Commission. That is not sufficient, first, because the written protest apparently filed by the taxpayer, setting out his contention of non-liability, is not exhibited, nor are the grounds thereof set out in the plea; and, second, because the doctrine of res adjudicata is not to be predicated upon administrative action. 30 Am. Jur. p. 909, Sec. 164.
Next the plea invokes the certiorari proceeding in the circuit court of Hinds County. No statement of fact is made in the plea as to the issues involved. It simply exhibts a copy of the judgment of the court, which order says the court had considered the matter and adjudged Viator liable for the tax.
The plea then sets up the appeal to this Court. It says this Court affirmed the lower court and exhibited a copy of the judgment entered here. The opinion of this Court was admitted by agreement. In that opinion this Court expressly stated that under our practice the court to which a case has been removed by certiorari is confined to an examination of the questions of law arising or appearing on the face of the record. No controversial questions of fact were adjudicated.
The plea then exhibits a copy of the order of the Supreme Court of the United States upon the appeal to that court. That order merely says the appeal was dismissed because no federal question was involved.
Next the plea refers to an injunction proceeding in the chancery court of Harrison County. There is no statement of the issues there involved.
It says that case was appealed to this Court. It sets up only the order of this Court, which simply finds there was no error in the chancery court. It states that case *Page 507 was appealed to the Supreme Court of the United States and exhibits the order of that Court, which says the appeal was dismissed because no federal question was involved.
It then makes reference to a proceeding in the Federal District Court, but does not state what issues and questions were involved.
We believe it is obvious that this plea did not show the issues and questions involved in the former proceedings and their adjudication by courts having jurisdiction thereof so as to demonstrate that the issues and questions now presented have been adjudicated, especially in view of the fact that the plaintiff filed a replication thereto, and the only proof introduced was opinion of this Court in the certiorari proceeding to which reference has been made above.
We deem it unnecessary for us to undertake to prescribe the form of a plea of res adjudicata. It is necessary that it set out as facts and not as conclusions of the pleader, the issues and questions involved in the former proceeding; show that the court had jurisdiction of the parties and the subject matter, and what the judgment of the court was upon such issues. Naturally, the most accuate way to do that is to exhibit copies of the pleadings and of the judgment, as well as copy of the service of process on defendant, showing him to be properly in court, unless this be shown by the judgment. However, it is not absolutely essential that such copies be exhibited. It is said in 9 Enc. of Pleading and Prac., p. 625 b, "In pleading a former decision as an estoppel, the former record should be set out, or made part of the pleadings; or at least so much of it as will enable the court to determine whether the same question has been adjudicated in the former suit. But it is unnecessary to set forth in detail the pleadings in the former suit."
The annotator in 120 A.L.R. at page 150, makes this observation: "A sufficient pleading setting up an estoppel by a prior adjudication must show that the *Page 508 earlier judgment was rendered upon the merits of the case, . . ." citing Miller v. Buckley, 85 Miss. 706, 38 So. 99; Germain v. Harwell, 108 Miss. 396, 66 So. 396. It is further stated by the same annotator at page 152 of said report: "To this end, the plea must set forth the issues as appearing from the pleadings and judgment in the former suit, at least, in legal effect, and show by setting forth the defense made in the prior action that the merits of the cause were decided. The former judgment, set up as an estoppel, must also have been decided or rendered upon the merits of the case involved in the second suit. . . ."
In 30 Am. Jur. p. 993, Par. 274, it is said: "Ordinarily, questions as to the effect of judgments as res judicata cannot be decided from the judgment alone, but must be determined by the aid of the entire record, and the general rule is that proof of the whole record must be introduced where a party intends to avail himself of a judgment as an adjudication on the subject matter, particularly where it is material to show the premises and grounds on which the judgment is based, or the jurisdiction of the court rendering the judgment. . . ."
For what is meant by record see Dogan v. Brown, 44 Miss. 235. We conclude the discussion by saying that the plea must show, as facts and not conclusions of the pleader, the questions and issues presented to and their adjudication by the prior tribunal, and the jurisdiction of that court of the parties and the subject matter, in such full and accurate manner as that the trial court can determine whether the issues and parties in the present litigation are the same as in the prior litigation and that such issues were previously adjudicated on their merits.
Suggestion of error overruled.