While the dissenting opinion of Mr. Justice Cothran presents some interesting questions, I concur in the opinion of Mr. Justice Stabler, that the order of Hon. C.C. Featherstone, Circuit Judge, should be affirmed, and desire to express, briefly, some reasons therefor.
It appears from the order of the Court that, in the hearing on the motion to strike out paragraph IX of the answer of the defendants, the parties agreed that the Judge should also pass upon the merits of the question as to whether or not the judgment of the Court in the case of Dunlop Milling Company et al. against the defendants in this case is a bar to this action.
Apparently, as the record seems to disclose, the defendants in their plea of res adjudicata cannot show more than they alleged in their answer. It will be observed, too, that the *Page 354 Circuit Judge concluded, so far as the facts before him showed, that the plaintiff "had no notice of the pendency of the former action, nor was it invited in, nor did it take any part therein." And there has been no appeal from that particular determination.
In the case of Newell v. Blankenship, 130 S.C. 131;125 S.E., 420, cited by Mr. Justice Cothran, this rule was laid down:
"So that, in order to invoke the principle of res adjudicata against one not a party to the action in which the judgment was obtained, it must appear, in the action in which that principle is invoked: (1) That such person was legally bound to, at least partially, indemnify the defendant in the first action against the recovery suffered by him therein. (2) That he was seasonably notified of the nature and pendency of the action, and of the time and place of trial."
In that case, this Court held that the plea of res adjudicata, claimed there, was not established because "the duty of the plaintiff to give reasonable notice to Blankenship was scantily performed," since it appeared that the only information given was simply a statement that "a lawsuit was pending between" the other parties.
It seems clear to me, from a reading of the case ofRobbins v. Chicago, 4 Wall., 657; 18 L.Ed., 427, referred in Newell v. Blankenship, supra, that those who are not parties to the cause, but who have a direct interest therein, must at least "have knowledge of its pendency" before they can be precluded of any right as to matters involved in the litigation.
Since the Circuit Judge held as he did on the facts as to failure to give the plaintiff any notice of any kind of the Dunlop suit, it is obvious that the Newell Case and the RobbinsCase are authorities to sustain his legal conclusions.
As suggested by Mr. Justice Cothran, an anomalous situation may arise if the plaintiff is successful in its suit. But, if that situation does come about, it does not seem to *Page 355 me that the plaintiff will be responsible therefor. To the contrary, the blame, if any, must rest upon the parties to the Dunlop suit; and the defendants here were defendants there. All the parties to the Dunlop suit were charged with at least constructive notice that the plaintiff was a judgment creditor. When they failed to make the plaintiff a party to the former action, and when they neglected to give the plaintiff any kind of notice of the pendency of that litigation, they were guilty of negligence. If any peculiar situation should arise as the result of the negligence of the parties to the Dunlop suit, without any negligence on the part of the plaintiff herein, I do not see why the plaintiff should be made to suffer the loss of any legal right it may have.
Attention should also be called to the fact that the defendants made no objection before Judge Featherstone as to the manner in which the questions submitted to him were raised. In fact, they agreed to the procedure. No point was made that plaintiff should have demurred to the answer. The defendants practically said to the Court that their answer alleged all the facts that they would be able to establish by testimony, and agreed for the Circuit Judge to say if those facts were sufficient to establish their plea that plaintiff's suit was barred by the judgment in the Dunlop Case. The exceptions before us only charge error on the part of the Circuit Judge in his conclusions that this action is not barred by the judgment in the former action, and that the plaintiff was not estopped by reason of that judgment.
The only question for this Court to pass upon is, if the plea should be sustained by proof, would the plaintiff thereby be barred? The Circuit Judge has answered in the negative, and I am inclined to feel that he answered correctly.