On Appellant’s Motion for Rehearing.
[6] On July 1, 1916, judgment in this case was reversed, and the cause remanded. Ap-pellees filed a motion for rehearing and to certify, and on October 28, 1916, we certified the questions as to whether we were correct in holding that the four-year statute of limitation applied instead of the two-year statute of limitation, and whether the trial court erred in dismissing the suit after he had sustained the two-year statute of limitation interposed by defendants; the amount in the suit thereby being reduced below the jurisdiction of the county court. On May 4, 1921, the Supreme Court answered the first question, to the étteet that the four-year statute of limitation applied. Appellant has filed a motion for rehearing, urging, as this case was submitted to the trial court on an agreed statement of facts, which showed that items of interest to the state, which plaintiff sued to recover, had been paid by him in order to protect his vendor’s lien, and as the four-year statute of limitation applies, these payments were recoverable against the defendants. Appellant urges that, under this record, it is our duty, .under article 1949, V. S. Tex. Civ. Statutes, to render the judgment which the trial court should have rendered. We believe that this contention is sound. Therefore we overrule appellees’ motion for rehearing, and grant appellant’s motion for rehearing, and set aside the former judgment, in which we reversed the judgment below and remanded the cause, and here reverse the judgment below, and render judgment for appellant for the sums sued for, with interest at 6 per cent, from the date of payment of each.
On Appellees’ Motion for Rehearing.
We do not think appellees’ plea of res judi-cata was sufficient. The plea is as follows:
“Defendants show that said item of $73.31, and said other items, having been paid prior to suit and judgment in case of Smith v. Nesbitt et al., and said items not having been pleaded or attempted to be recovered in said suit when the same might have been litigated therein, that said case and judgment therein is res adjudicate, of any suit to recover thereon, and of that item in so far as set up in this suit.”
[7] A party pleading res judicata must show, by distinct allegations, material and essential facts necessary to constitute a proceeding res judicata. Philipowski v. Spencer, 63 Tex. 604. The concurrence of the following conditions are generally regarded as essential, to wit: (1) Identity in the thing sued for; (2) identity of the cause of action; (3) identity of the persons and of parties to the action; (4) identity of the quality in the persons for or against whom the claim is made. 2 Bouv. Law Dictionary, p. 2910; Philipowski v. Spencer, 63 Tex. 604.
[8, 9] Though plaintiff did not even demur to defendants’ answer, in which, they pleaded res judicata, yet we think the plea as presented is wanting in the essential elements of the plea, and is insufficient to sustain a judgment, even though supported by evidence. A defective pleading, which does not state a *1108cause of action or a legal defense, may be regarded as fundamental error in the appellate court. Rivers v. Campbell? 51 Tex. Civ. App. 103, 111 S. W. 190, writ of error denied 103 Tex. 670, 111 S. W. 190, no opinion; Railway Co. v. Coal & Mining Co., 60 Tex. Civ. App. 248, 127 S. W. 245; Brownsville v. Tum-linson, 179 S. W. 1107; T. & P. Coal Co. v. Lawson, 89 Tex. 394, 32 S. W. 871; 34 S. W. 919. It does not appear that the trial court sustained defendant’s plea of res judicata, but did sustain their plea of two years limitation to two of the items sought to be recovered, and dismissed the suit because the remaining item was below the court’s jurisdiction.
It is probably true that the evidence does not sustain a judgment upon defendant’s plea of res judicata, but, inasmuch as we have decided that the plea was essentially insufficient, it will not be necessary for us to discuss the character of. the testimony to support said plea.
The motion for rehearing is overruled.