There is, undoubtedly, high authority which supports the ruling of the learned circuit court. There are cases which distinctly hold that a judgment in a justice’s court in favor of a physician or surgeon for professional services is a bar to any action by the defendant therein against such physician or surgeon for malpractice in rendering such services. Gates v. Preston, 41 N. Y., 113; Blair v. Bartlett, 75 N. Y., 150; Bellinger v. Craigue, 81 Barb. S. C., 534. There is, however, some conflict of authority on this subject; and as the question is now presented to this court for the .first time, we feel at liberty to adopt a rule which seems to us founded on sound principle, and most in accord with reason and convenience in practice. The courts in New York in effect say that the question of the proper care and skill on the part of the physician or surgeon is one necessarily involved and adjudicated upon in an action by him to recover compensation for his services rendered; therefore a judgment in his favor should estop the parties to such suit from ever after questioning that fact in any other action. And the courts of that state even apply the rule to a case where, though the defendant at first appeared in the justice’s court and put in an answer, yet he afterwards withdrew it, and did not contest the plaintiff’s claim; and the judgment was held to be a bar to a subsequent action by him against the physician for malpractice. Blair v. Bartlett, supra. But the doctrine of the New York courts has not escaped criticism.
Mr. Bigelow, in his learned work on Estoppel (2d ed.), p. 98 et seq., reviews these decisions, as well as the adjudications of other courts in strictly analogous cases, and questions the soundness of the New York rule, “unless the distinction taken in New Hampshire, between a judgment by confession and one by default or on trial without alleging the defense, be correct.” Page 107. “ It may sometimes be difficult to draw a line of distinction between a judgment which will operate as a bar to ah action for a specific claim, and one which leaves *655the claim outstanding to be enforced by a cross-action” (Church, C. J., in Dunham v. Bower, 77 N. Y., 79); but where, as in this case, the defendant makes default in a justice’s court, and does not even attempt to contest the value of the services rendered, or raise the question of their proper performance, it is more difficult to perceive any solid ground for holding that he is concluded from showing, in another action, that the plaintiff in that case was'guilty of negligence in his professional treatment. It was certainly not necessary, in order to entitle the plaintiff in the justice’s court to a judgment, that he should prove he was not guilty of any negligence. “ It was enough to show simply that he performed the services at the defendant’s request, and their value, and the fact that the amount was due.” Hagans, J., Sykes v. Bonner, 1 Cin. Sup. Ct. Rep., 464. It is very doubtful whether _the defendant, in the action before the justice, under his answer, could have shown that the plaintiff was guilty of malpractice (Crawford v. Earl, 38 Wis., 312); certainly, he did not attempt to raise that issue, or litigate any such question. And if this action is barred by the recovery in the justice’s court, it is because the question as to the care and skill of the defendant herein was involved by implication in that suit, not because any such fact or issue was actually litigated between the parties.
This court has said that a judgment is conclusive upon the parties thereto only in respect to the grounds covered by it, and the law and facts necessary to uphold it. Hardy v. Mills, 35 Wis., 141; Lathrop v. Knapp, 37 Wis., 314. According to this rule of law it is apparent the supplemental answer states no defense; for the issue in this action was not necessarily involved in the justice’s suit, and the plaintiff may maintain it notwithstanding the defendant recovered for his services in that court. The plaintiff’s claim for damages resulting from malpractice constitutes a separate and independent cause of action, which he can enforce without disturb*656ing any matter litigated in that case. He was not compelled to make the defense before the justice that the defendant’s services were of no value, in order to save his rights. He had his election either to recoup his damages pro tanto in the justice’s court or go for his entire claim in this. It seems to us that this is the better and more convenient rule to lay down upon the subject. If the plaintiff were compelled to make his defense in the justice’s court, that the professional services were of no value, and that he had been injured by the defendant’s negligence, then it would follow that he must either split up his demand so that there might be two suits instead of one upon it, or content himself with merely defeating the claim for services, or limit his damages to $200, the extent of the jurisdiction of the justice. We are not inclined to adopt a rule which would lead to any such inconvenient consequences. We say, in the language of Mr. Bigelow: “Every cause of action carries with it the right to put it into judgment; and that there is a separate and independent cause of action given to each party results necessarily from the fact that either party may sue the other for a breach. No suit can be maintained except upon a legal ground of action. Now, as one cause of action cannot in itself alone, when merged in judgment, carry another and independent cause of action with it, it is difficult to understand how a judgment for the plaintiff, without plea, can extinguish a counter-right of action by the defendant, however closely connected the two claims may be. Every one has the right to try his own case.” Bigelow on Estoppel, 104.
The New York authorities are more or less in conflict with the doctrine laid down or recognized in the following cases: Bodurtha v. Phelon, 13 Gray, 413; O'Connor v. Varney, 10 Gray, 231; Bascom v. Manning, 52 N. H., 132; Barker v. Cleveland, 19 Mich., 230; Mondel v. Steel, 8 Mees. & W., 858; Rigge v. Burbidge, 15 Mees. & W., 598; Davis v. Hedges, L. R., 6 Q. B., 687.
It is needless to remark that if the plaintiff in this suit had *657set up tbe defense of malpractice in the action before the justice, an adjudication upon that issue would the,n have been a bar. The case then would come within a very familiar principle. Howell v. Goodrich, 69 Ill., 556. But upon the facts stated in the supplemental answer we are inclined to hold that the recovery in the justice’s court is no bar. The question is very fully examined in the authorities to which we .have referred, and further discussion of it seems unnecessary.
By the Court.— The order of the circuit court, overruling the demurrer, is reversed, and the cause remanded for further proceedings according to law.
Cassoday, J., took no part.