On Motion for Rehearing
PER CURIAM.In their motion for rehearing or in the alternative for transfer to the court en banc defendants say that we erroneously ruled upon the issue of res adjudicata in the opinion, that we assumed that only factual issues can be res adjudicata and that we ignored that questions of law are also adjudicated, and once adjudicated cannot thereafter be submitted again for determination.
We said in the opinion that the decree is only conclusive and operates as an es-toppel as to the issues actually litigated and settled, and where the subsequent action is upon a different claim, the judgment in the former case is conclusive of and bars only those issues which were actually tried, citing Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629, 639 [12]; and Abeles v. Wurdack, Mo., 285 S.W.2d 544.
The factual issue decided in the former suit was the survivorship of the two decedents, and from that finding flowed the judgment that the estate of Lois Pierce, deceased, was entitled to inherit from the estate of Otho Pieixe, deceased, as surviving spouse. Meisel v. Mueller, Mo.App., 261 S.W.2d 526, does say, loc. cit. 532, “It is undoubtedly the law that a prior adjudication, in order to bar a subsequent action, must involve the same claim, demand, and cause of action, 30 Am.Jur., § 172, p. 914, but it is also the universal rule, that the prior adjudication, applies not only to points and issues that were raised by the pleadings and the parties, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought fotward.” In Custer v. Kroeger, 313 Mo. 130, 280 S.W. 1035, 1037, 44 A.L.R. 1328, it Was stated, “Every question presented in the petition before us could have been litigated in the former case. The appellant is concluded in this action, not only to the issues which were tried in the former suit, *552but in respect to every issue which was within the purview of the pleadings, and was the subject of controversy in said action.” See also the cases of Mississippi Valley Trust Company v. Beatty et al., Mo., 242 S.W.2d 490; Christy v. Great Northern Life Ins. Co., 238 Mo.App. 525, 181 S.W.2d 663; Doebbeling v. Quimby, 221 Mo.App. 1178, 299 S.W. 629; and Case v. Sipes, 280 Mo. 110, 217 S.W. 306.
In addition to the opinion of Schmitt v. Pierce, Banc, Mo., 344 S.W.2d 120, and the decree in the two prior consolidated cases, we have examined the pleadings in these prior cases which are on file in this court. The basic allegations of the facts in the two prior suits that decedents were husband and wife; that they were involved in an automobile accident from which they died; the administrators of the two estates; and the heirs of both decedents, are the same as in the present suit. At this point there is a divergence in the petitions in that in the first suits it was alleged that Lois Pierce survived her husband and thereby became entitled to a widow’s interest in his estate (and was entitled to take the property held by the entirety during the marriage). The prayers were that the court find that one-half of the Otho Pierce estate belonged to the Lois Pierce estate, and that the same remaining after expense of administration be turned over to her estate, and that the property held as tenants by the entirety be adjudged to belong to the heirs of Lois Pierce. Defendants denied the allegations of heir-ship and survivorship, and by counterclaim stated that Otho Pierce survived Lois Pierce, or that they died simultaneously, and that his estate was entitled to one-half of hers, or in the alternative that one-half of the property owned by the entirety be adjudged vested in defendants. Significantly, in the motion for consolidation of the two prior cases, defendants stated, “The issues in both cases are identical, that is, the question of fact to be determined is whether or not Lois Pierce predeceased Otho Pierce, or whether Otho Pierce predeceased Lois Pierce, or whether both Otho Pierce and Lois Pierce died simultaneously as a result of common disaster.”
From the aforesaid pleadings, the decree, and the opinion in Schmitt v. Pierce, supra, it is clear that no other issue than survivor-ship was presented or could have been then decided. The subject of controversy was merely that of survivorship and the attendant right to inherit.
We deem that the opinion in this case is not a departure from the doctrine of res adjudicata as applicable to issues of law within the subject of controversy which could have been raised (but were not) in a former suit. As stated in the opinion, the cause of action here is different than in the previous suits.
Defendants say that our ruling that the matter of the court costs in the former suit is res adjudicata is inconsistent with the ruling that the survivorship suits are not res adjudicata. The present ruling that the court costs which were adjudged in the former suits is a clear example of the doctrine “estoppel by judgment.” Defendants are thereby precluded from a collateral attack upon the former final judgment as to costs. Nor is defendants’ claim that plaintiffs did not specifically plead res adjudicata correct. Plaintiffs did plead this issue in this declaratory judgment action by setting forth in their petition the allegation that the administrators of the estate of Otho Pierce, deceased, intended to charge these former court costs against that estate, thus bringing the issue squarely before the court. This type of affirmative pleading is not the same as that required of affirmative defenses (pleading to a preceding pleading) by Supreme Court Rule 55.10, V.A.M.R.
The motion for rehearing or in the alternative to transfer to the court en banc is overruled.