dissenting in part.
I concur in the holding of the majority that the order entered in plaintiff’s first habeas corpus action (Barber v. Gladden, 210 Or 46, 298 P2d 986, 309 P2d 192) adjudicated, not only all grounds alleged by the plaintiff in his pleadings,-but all other grounds which could have been averred, but I dissent from the concluding part of the opinion which declares:
“If he can establish that any of these grounds could not reasonably have been raised in the prior petition the principle we have announced in this case does not preclude him from taking appropriate action to protect his rights.”
Before the majority wrote that statement it declared:
“We believe that the principle of res judicata should be fully applicable to habeas corpus proceedings.” *138Obviously, if “the principle of res judicata” is “fully applicable” to habeas corpus proceedings, a petitioner must set forth in his petition all of his claims for relief and be deemed to have waived all others. If the majority view prevails, the doctrine of res judicata will become little more than a scarecrow. Our statutory enactment upon the subject (QB-S 34.710), as I will presently show, is opposed to the majority position.
As the majority say:
“There is nothing in the record to show that the issues presented on this appeal could not have been presented in the first habeas corpus proceeding brought by the plaintiff in December, 1955.”
The plaintiff makes no averment that he was unaware, in 1955, of anything which he alleges in his present action. The majority continue:
“In fact some of the grounds urged as a basis for the writ in the present case are essentially the same as those presented in the first petition.”
The doctrine of res judicata rests upon the conviction, held in the legal system of all civilized nations, that litigation must come to an end, and that when a court of competent jurisdiction has adjudicated the controversy its judgment must be deemed the termination of the controversy. As said in 30A Am Jur, Judgments, p 373, § 326:
“* * * Public policy and the interest of litigants alike require that there be an end to litigation which, without the doctrine of res judicata, would be endless.”
The present case justifies the statement just quoted that, in the-absence of the doctrine, litigation “would be endless.” The plaintiff was sentenced November 20, 1953,. upon his plea of guilty to. an indictment which *139charged him with the crime of burglary with explosives. December 22, 1955, he filed in the Circuit Court for Marion County his first petition for a writ of habeas corpus. As in the present proceeding, the petition named as defendant the warden of the penitentiary. When the case came on for a hearing, the circuit court ruled adversely to the plaintiff and from its order dismissing the proceeding he appealed. His notice of appeal to this court met with a motion to dismiss. Thereupon the plaintiff moved for an order waiving the payment by him of appeal fees and the statutory requirement for an appeal bond. In Barber v. Gladden, 210 Or 46, 298 P2d 986, this court denied the motion to dismiss, waived the requirement for payment of appeal fees and, yielding to Griffin v. Illinois, 351 US 12, 76. SCt 585, held that the plaintiff need not file an appeal bond. The decision was rendered June 27, 1956. Subsequently the merits of plaintiff’s habeas corpus proceeding were considered by this court and in a decision announced March 27, 1957, the order of the circuit court which dismissed the proceeding was affirmed. Barber v. Gladden, 210 Or 55, 309 P2d 192. November 5, 1957, the plaintiff filed in the Circuit Court for Marion County the petition in the present proceeding. The circuit court ruled against him and from the resulting order of dismissal we have this appeal.
We see from the foregoing that the plaintiff has been before the circuit court three times: first, as the defendant in State v. Barber, charged by an indictment with the crime of burglary with explosives; second, as the plaintiff in the habeas corpus proceeding entitled Barber v. Gladden; and third, as the plaintiff in the second habeas corpus proceeding entitled Barber v. Gladden. He has also been before this court *140three times: first, when his appeal in his first habeas corpus proceeding met with a motion to dismiss and he himself moved for relief from the payment of appeal fees and the requirement of an appeal bond; second, when the merits of his appeal came on for a hearing; and third, his appearance before this court in the present case.
Our statute, which imports finality to the adjudications made in habeas corpus proceedings, does not warrant the majority’s holding that if the petitioner “can establish that any of these grounds could not reasonably have been raised in the prior petition” he may file another proceeding. Our statute (ORS 34.710) says:
“* * * No question once finally determined upon a proceeding by habeas corpus shall be reexamined upon another proceeding of the same kind.”
If the word “question”, which appears in the quoted statute, means only a specific ground set forth in the petition, the majority is right in its holding that the plaintiff may institute another post-conviction proceeding, but if the word “question” includes not only the specific grounds which were alleged in the first proceeding, but all others which were available, the outcome of the first case bars the maintenance of the second. Notwithstanding that the majority holds that the word “question” includes all grounds which could have been alleged, it nevertheless authorizes the institution of a third proceeding. I am satisfied that we must adopt the view that the word “question” includes, not only the grounds specifically set forth in the first proceeding, but all others that could have *141been alleged. In fact, OES 34.360 provides that a petition for a writ of habeas corpus
“shall state, in substance * * *
(6) That the legality of the imprisonment or restraint has not already been adjudged upon a prior writ of habeas corpus.”
ORS 34.310 requires that a petition for a writ of habeas corpus shall aver:
“(5) If the imprisonment or restraint is alleged to be illegal in what the alleged illegality consists.”
There can be no doubt that the plaintiff could have presented in his first proceeding all of the grounds which he possesses. The majority, it will be recalled, says: “If he can establish that any of these grounds could not reasonably have been raised in the prior petition” he may institute another proceeding. When the plaintiff was before the circuit court upon arraignment after indictment, he could have raised every ground mentioned in the majority opinion. In fact, that was the proper time to challenge the legality of the grand jury, the sufficiency of the indictment, the jurisdiction of the court or present any other ground for relief that he had. Again, when he filed his first habeas corpus action, he had every opportunity procedure affords to present to the court every ground that he had in mind. Our habeas corpus statute, which is unusually comprehensive, says:
“Every person imprisoned or otherwise retrained of his liberty within this state, * * * may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and if illegal to be delivered therefrom.”
Other sections of the act which I have quoted demand that the petition, in challenging the validity of his imprisonment, must set forth all of his grounds of *142attack. He cannot withhold some and, upon meeting with defeat, file another proceeding in which he alleges some of his other grounds. Accordingly, it is clear that the plaintiff had every opportunity that liberal procedure affords to present, at the time of his arraignment or in his first petition for a writ of habeas corpus, the grounds which the majority says he may present upon a third application.
Possibly the majority may have in mind that the plaintiff was ignorant of something affecting his rights when he filed the first and present proceedings and of which he may wish to avail himself when he files the envisioned third proceeding. Bearing in mind that habeas corpus is a civil proceeding (Barber v. Gladden, supra), the following, taken from The Town of Beloit v. Morgan, 7 Wall 619, 19 L Ed 205, is pertinent to a proposal to employ ignorance as an excuse for an omission from a previous petition in habeas corpus:
“On the 9th of January, 1861, the appellee recovered a judgment at law against the appellant upon another portion of these securities—though not the same with those in question in this case. The parties were identical, and the title involved was the same. All the objections taken in this case might have been taken in that. The judgment of the court could have been invoked upon each of them, and if it were adverse to the appellant, he might have brought the decision here by a writ of error for review. The court had full jurisdiction over the parties and the subject. Under such circumstances, a judgment is conclusive, not only as to the res of that case, but as to all further litigation between same parties touching the same subject-matter, though the res itself may be different.
“An apt illustration of this principle is found in *143Gardner v. Buckbee, 3 Cow. 120. Gardner bought a vessel from Buckbee, and gave two notes for the purchase money. Buckbee sued him upon one of the notes in the Marine Court. Gardner set up as a defense, fraud in the sale and a want of consideration. A verdict and judgment were rendered in his favor. In a suit upon the other note, in the Common Pleas of the City of New York, the judgment in the Marine Court was held to be an estoppel upon the subject of fraud in the sale. Bouchaud v. Dias, 3 Den. 238; Doty v. Brown, 4 N. Y. 71, and Babcock v. Camp, 12 Ohio St. 11, are to the same effect and equally cogent. Such has been the rule of the common law from an early period of its history down to the present time. Ferrar’s Case, 6 Co. 8; Hitchen v. Campbell, 2 W. Bl. 831; Duchess of Kingston’s Case, 2 Sm.L. Cases, 656. Aurora v. West, ante, 42; see, also Birckhead v. Brown, 5 Sandf. S. C. 135. But the principle reaches further. It extends not only to the question of fact and of law, which were decided in the former suit, but also to the grounds of recovery or defense which might have been, but were not, presented.
“In Henderson v. Henderson, 1 Hare, 115, the Vice Chancellor said: ‘In trying this question, I believe I state the rule of the court correctly, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as a part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted a part of their case. The plea of res judicata applies, except in special cases, not only to the points upon which the court was required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged *144to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’
“A party can no more split v. defenses than indivisible demands, and present them by piecemeal in successive suits growing out of the same transaction. Brandernagle v. Cocks, 19 Wend. 207. The judgment at law established conclusively the original validity of the securities described in the bill and the liability of the Town to pay them. Nothing is disclosed in the case which affects this condition of things.”
Cromwell v. County of Sac, 94 US 351, holds:
“In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.”
In Columb v. Webster Manufacturing Co., 84 F 592, the cause of action arose out of the same transaction as the previous one, but the complaint alleged additional charges of negligence. The decision followed the holding in Town of Beloit v. Morgan, supra, and held that the outcome of the first action barred the maintenance of the second action.
I dissent from the part of the opinion previously mentioned.