(dissenting). I am in accord with the holding of the majority that Mrs. Pearson’s interest in the forge property has been determined. S'he was named and served as a party defendant in *201action No. 55050. Not only was judgment in that ease entered on the report of the committee designated to assess damages for the condemnation of her property but she actually accepted the $1750 which the judgment awarded to her for the taking. Obviously, she has no standing with respect to that tract.
The situation affecting the so-called schoolhouse property, however, is a horse of another color. My colleagues take the view that her interest in that tract was adjudicated in an action docketed as No. 55266. The history of events, as it relates to that suit, is this: The water company, proceeding under its right to exercise the power of eminent domain, instituted action No. 55266 to complete the condemnation of the schoolhouse property. Although not named as a party defendant or served with process, Mrs. Pearson learned of the action and, since it involved a tract of land in which she claimed an interest, filed a special appearance. Shortly thereafter she attended a hearing had by the Superior Court and acted as her own counsel. Upon cross-examination of the president of the water company, she elicited from him the fact that he had been fully aware, before the institution of suit, of her being in possession of the property in question. After this disclosure was made, the court addressed the following statement to Mrs. Pearson: “You are not a party to this record and are not bound by anything that happens here — consequently, if you have a right to possession and you haven’t been summoned in here, so that your rights can be taken care of, you are no more bound by what happens here today than if you hadn’t been within five thousand miles.” This was indeed strong assurance of her status and, considering its source, a layman *202like Mrs. Pearson was warranted, it seems to me, in assuming that, unless she was a party defendant, she need not participate further m the proceedings. Accordingly, she did nothing until the water company, still stubbornly refusing to cite her in as a party, had obtained an order for peaceable possession and, upon the issuance of an execution directed to that end, had removed her furniture and other personal property from the building standing on the tract. When this occurred, she filed a motion in the Superior Court requesting the revocation of the above-mentioned order. The court, acting through a different judge from the one who had given to her the unequivocal assurance of the security of her position as a nonparty, denied the motion without indicating any reason for so doing. This left her in a most unusual situation. Even on the violent assumption that she had the same right to appeal that a party to the action would have had, there clearly would be no right to appeal from such a ruling as the denial of a motion to revoke an order for peaceable possession. Quinlan v. City National Bank, 105 Conn. 424, 429, 135 A. 435. The judgment from which an appeal is allowed must be a judgment upon some issue in the case. Norton v. Petrie, 59 Conn. 200, 202, 20 A. 199. The denial of Mrs. Pearson’s motion did not involve any issue in the case.
In the face of the foregoing, the majority make use of this denial to support their holding of res adjudicata and to justify the issuance of a restraining order, enjoining Mrs. Pearson from proceeding further with an action previously commenced by her to establish her interest in the schoolhouse tract. It is from this part of the opinion that I dissent.
I have no quarrel with the following, which appears in the opinion: “It is not essential in the *203application of the doctrine of res adjudicata, however, that a party to be bound by the former adjudication should have been a formal party thereto or privy to a formal party. It is sufficient if he, having an interest in the subject matter, participated openly and actively in so much of the former litigation as led to the judgment adjudicating the cause of action in question.” The majority have cited no case — for, I suspect, they have found none — wherein res adjudicata may rest on the decision of a motion filed after judgment had been entered. As their own words, quoted above, demonstrate, the principle upon which they rely is applicable only when there is an open and active participation which leads to judgment. It is totally inapt when the participation consisted solely in the filing of a motion to revoke a final judgment which Mrs. Pearson had been advised from the bench could never affect her as long as she was not made a party to the action.