This suit was brought in room three of the Marion Superior Court, by the appellees against the appellant on a judgment rendered by the circuit court of Cook county, Illinois. A demurrer to the complaint for want of facts was overruled, and an answer and counterclaim in three paragraphs filed by appellant. A demurrer was sustained to the second paragraph, and overruled as to the third. Appellees filed a reply in two paragraphs to the third paragraph of the answer and counterclaim. The cause was then transferred to another judge presiding in room one of said court, where there was a trial by jury, and under an instruction by the court to that effect, a verdict was returned in favor of appellees. Over appellant’s motion for a new trial, judgment was rendered on the verdict for $1,450.00.
The errors assigned are, the overruling of the demurrer to the complaint, sustaining appellees’ demurrer to the second paragraph of appellant’s answer and counterclaim, and the overruling of the motion for a new trial.
The complaint contains the following averments: “The plaintiffs, complaining of the defendant, say that heretofore, to wit: on the 15th day of July, 1893,
Appellant’s counsel insist that the complaint does not show that the circuit court of Cook county had jurisdiction of the person of the defendant in that suit.
It has been held that notwithstanding that provision of the constitution of the United States that “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state,” the jurisdiction of the court rendering a judgment in any state may be questioned in a collateral proceeding and that the jurisdiction of a foreign court over the person or the subject-matter is always open to inquiry. Grover, etc., Machine Co. v. Radcliffe, 137 U. S. 287.
For the purpose of the demurrer to the complaint, it is admitted that the Illinois court rendering the judgment is a court of general jurisdiction.
One of the leading cases in the United States on the subject of the presumptions in favor of the jurisdiction of a court, is Galpin v. Page, 18 Wall. (U. S.) 350, in
In the case of McLaughlin v. Nichols, 13 Abb. Pr. 244, cited by appellant, there was no averment that the court rendering the judgment had or obtained jurisdiction of the person of the defendants, nor did the complaint aver the fact of the existence of a general jurisdiction in the court, or of a limited jurisdiction which extended to the cause of action for which the judgment was recovered. So, in the case of Gebhard v. Gamier, 12 Bush. 321, there was no averment in the complaint about the jurisdiction of the court rendering the judgment, nor was there any averment that the court was one of general jurisdiction. The case of Ashley v. Laird, 14 Ind. 222, was a suit on an Iowa judgment. At that time in bringing suit on a judgment it was necessary to make the transcript of the judgment a part of the complaint. But the record there set out contained none of the pleadings, nor did it in any manner disclose what was the cause of action or the subject of the controversy. This case, however, holds that where the subject-matter of the suit appears, and the court rendering the judgment is one of general jurisdiction, it may, perhaps, be presumed that the court had jurisdiction of the subject-matter thus appearing.
In cases of domestic judgments of courts of general jurisdiction, where they come collaterally in question, the rule is that- where the record discloses nothing
“Any proceeding to have a judgment declared void, on account of matters not appearing on the face of the record, is a collateral attack on the judgment.” Lewis v. Rowland, 131 Ind. 103; Exchange Bank v. Ault, 102 Ind. 322; Harman v. Moore, 112 Ind. 221.
Whether the judgment on which suit is brought is a foreign- or domestic judgment, .the same rule applies as to necessary averments in the complaint. In 2 Freeman on Judgments (4th ed.), section 453, the learned author says: “The presumptions in favor of jurisdiction are the same whether the judgment relied upon is domestic, foreign, or of one of the sister states of this Union. The allegations in a complaint seeking to recover upon a judgment rendered in another state need not differ from those in a complaint on a domestic judgment. Neither the authority of the court to act, its jurisdiction over the subject-matter, nor the steps taken to acquire jurisdiction over the parties, need be stated.” 2 Black on Judgments, section 835, and cases cited.
We think the allegations in the complaint that the circuit court of Cook county in the state of Illinois, was a court of general jurisdiction, is sufficient to raise the presumption that the court had jurisdiction 'of the-subject-matter and of the person of the defendant. Whether that presumption might be overcome, and if so, in what manner, would present a very different question from that raised by the demurrer to the complaint.
A demurrer was sustained to the second paragraph of appellant’s answer, and this ruling is assigned as error. It is alleged in this paragraph of answer that the declaration in the circuit court of Cook county,
The contrary not having been shown it will be presumed that the common lawprevails in the state of Illinois. The suit was originally brought on a joint cause of action, but at the time of the trial, as disclosed by this paragraph of answer, it had become a suit against Harry B. Gates alone, and proceeded to judgment upon that theory. This paragraph of answer shows that the appellant appeared and joined issue on a plea of non-assumpsit. It does not appear that he made any objection to the dismissal of the action as to his co-defendant, and the court having the power to permit the declaration to be amended, it will be presumed the amendment was made. It is true, as claimed by appellant’s counsel, that jurisdiction of the person may be given by consent of the parties, and that jurisdiction of the subject-matter cannot be so given; but where it is disclosed that appellant entered a general appearance, and with no objection on his part the cause was tried on the theory that he was individually liable, it will be presumed that the pleading was so
The first reason assigned for a new trial was error of the court in admitting in evidence the transcript of the Illinois judgment. The first objection to the transcript is that it shows upon its face a matter still pending in that court. The transcript itself shows that a final judgment was entered, and the judgment not having been satisfied at the time the transcript was made, the words “pending in said court” could mean no more than .that the cause was still pending in so far as the collection of the judgment was concerned. Thus it is held that “pending” applies to a judgment on which successive fieri facias venditionis have been issued, but not fully satisfied, and that although judgment has been recovered, the action is pending as long as the judgment remains unsatisfied. Ulshafer v. Stewart, 71 Pa. St. 170; Wegman v. Childs, 41 N. Y. 159; Mitchell, etc., Furniture Co. v. Sampson, 40 Fed. 805.
Objection is also made that the clerk’s certificate authenticates a cause “between Jacob Newman et al., plaintiffs, and Harry B. Gates et al., defendants,” and that these words import a cause in which there are two or more plaintiffs and two or more defendants. It is disclosed by the record that the plaintiffs and the defendant in this case are identical with the plaintiffs and the defendant in the cause in the Illinois court. The objection here goes only to the clerk’s certificate, while in the case of Suydam, Sage & Co. v. Aldrich, 3 McLean 383, cited by appellant, the declaration stated that the judgment had been obtained for a certain amount, and the record of the judgment introduced as evidence showed a different amount, which was held a fatal variance.
The remaining causes for a new trial, except the last, all relate to the refusal of the court to permit any evidence whatever by the appellant in support of the third paragraph of his answer or counterclaim.
This paragraph is quite long, but alleges substantially that the appellant, expecting to become the assignee of a certain company, retained the appellees to look after, direct and control all legal matters of whatever kind and nature it would be necessary and proper for him as such trustee to have looked after, directed and controlled by a competent lawyer or lawyers; that the appellees acted as appellant’s attorneys as such trustee, but never informed the appellant that it was the law of the state of Illinois that a trust estate could only be made liable for the payment of legal services rendered to any trustee by a formal order authorizing the employment of an attorney; that the appellees afterwards obtained a judgment against appellant for services rendered to him in the matter of such trust, and that this judgment is the judgment sued on in this cause; that the failure of appellees to
If this paragraph of answer or counterclaim was res judicata there was no error in excluding the evidence offered by appellant, and if it was not res judicata the cause must be reversed.
As to what was in issue when the Illinois judgment was rendered must be determined by the pleadings. Sharkey v. Evans, Admr., 46 Ind. 472.
That suit was brought upon a quantum meruit for services rendered by appellees as attorneys to the appellant under a general retainer, by which he retained appellees to perform for him certain legal services. To this declaration the appellant filed the plea of nonassumpsit, or general issue.
To recover under this declaration it was essential for the appellees to prove that the services rendered by them were valuable, and also what their reasonable value was. “If thé plaintiff sue upon a quantum meruit, the very form of his own declaration gives him notice that the adequacy of the consideration may be disputed.” Basten v. Butter, 7 East. 479; see 2 Smith’s Leading Cases, Hare & Wallace’s Notes, p. 62.
In the early case of Fischli v. Fischli, 1 Blackf. 360, 12 Am. Dec. 251, it was said: “Whenever a matter is adjudicated, and finally determined by a competent tribunal, it is considered as forever at rest. This is a principle upon which the repose of society materially depends; and it therefore prevails, with a very few exceptions, throughout the civilized world. This principle not only embraces what actually was determined, but also extends to every other matter which the parties might have litigated in the case.” After quoting the above, Elliott, J., in Ulrich v. Drischell, 88 Ind. 354, says: “The general doctrine so firmly settled cannot be disturbed, and the inquiry is as to its applicability to the present case. It is, however, a general rule to which there are marked exceptions. * * * Much as the question of former adjudication has been discussed, there is still much confusion in the authorities. Some of the cases say that it is conclusive only as to such issues as were presented by the pleadings; but this, it is evident, is not strictly accurate, as may be irrefutably established by a familiar example. Suppose that A sues B on a promissory note; the latter answers failure of consideration, and judgment goes against him; can there be a doubt as to that judgment concluding B from afterwards insisting that the note was discharged by payment? * * *
“It is incontestably true, therefore, that questions
In Kilander v. Hoover, 111 Ind. 10, where a suit had been brought upon a part of a series of promissory notes given for the purchase price of land, the others not being due, and the defendant’s answer set up facts showing a failure of the consideration of the notes sued on only, but asking that the whole series be declared satisfied, and a judgment was rendered for the defendant, it was held that that judgment was not a bar to a proceeding upon the remaining notes, and that a suit based on that judgment to obtain the cancellation thereof would not lie. Mitchell, J., speaking for the court, said: “Unless, however, it is made to appear that the defenses pleaded to the first claim, or demand, involved the whole title, or extended to the whole subject-matter, of the controversy between the parties, so as to litigate and determine the defendant’s liability in respect to the whole transaction, then the judgment is a finality only as to so much of the claims and defenses as was actually litigated in the first suit.”
Counsel for appellees have cited a number of New York cases in which it is held that in an action to recover compensation for medical or surgical services rendered by the plaintiff, wherein a judgment is given in his favor, the question of the skill and care of the surgeon or physician is necessarily adjudicated. These
This doctrine has never been recognized as the law in this State, but our courts have uniformly declined to follow it. In Goble v. Dillon, 86 Ind. 327, 44 Am. Rep. 308, the court said: “In New York res 'judicata, as to the negligence and unskilfulness, is made to depend upon the former judicial determination of the question of the value of the services, in the absence of any necessary consideration of the injury to the defendant, which, if considered, but not otherwise, would have led to a determination that the services were valueless. Such an estoppel may well be characterized as odious. One is struck with the frequency with which, in the reported cases, the suits for the services have been brought after the commencement of the actions for malpractice, as if for the purpose, ■which is sometimes declared, of preparing a defense for those actions. We have spoken of the hardship which may be imposed upon the plaintiff in the action for malpractice, if he be required at all events to defeat the claims for professional services. We are unwilling to extend the estoppel beyond the requirement of established principles.”
But it is earnestly insisted by appellant’s counsel that the negligence and wrongful acts of which the appellant complains in his counterclaim was, in addition to appellees’ alleged fraudulent “by-bidding,” their neglect to procure a proper order of the Lake
In the case of Goble v. Dillon, supra, which counsel for appellant, as well as counsel for appellee, in their respective briefs, discuss at length, the appellant Goble sued Dillon and one Hobbs for malpractice as physicians. In his second paragraph of answer, Dillon alleged,- in substance, that he and his co-defendant, the latter to aid and assist, were each separately and for himself employed by the appellant, and that on the 2d day of October, 1880, before a certain justice of the peace, this defendant filed his complaint, setting forth therein that the appellant was then,and there indebted to this defendant in the sum of $65.00; that this demand was made for and on account of said services, care, skill, and diligence by this defendant bestowed in and upon the adjusting, setting, treating, and curing of said broken leg; that when the cause came on for trial before the justice, the appellant appeared thereto, and for answer to the complaint alleged “that said services mentioned in said complaint, and for which judgment was therein asked for said sum of sixty-five dollars, by and in favor of this defendant and against said Goble, were entirely worth
In that case, as we have seen, in the judgment pleaded there had been a special answer, and also the general denial so far as Dillon was concerned. In the
The point involved and decided in that case was, that in an action before a justice of the peace, malpractice may be proven under the general denial, and the defense of malpractice not being one which the statute concerning justices requires to be specially pleaded, if there is an appearance and trial, and judgment is given against the defendant on the merits, it will be
We do not think the allegations of the third paragraph of answer and counterclaim of appellant Gates are matters of mere defense. This paragraph does not deny that the services to the trust estate were valuable. There is nothing in it inconsistent with a recovery by appellees for the full value of their services to the trust estate. The matters therein set out do not go to show that the services were without value, nor that they were not due, but that there was a failure and neglect on the part of the appellees to protect appellant from personal liability. If appellant was damaged the amount of the recovery for the services would not neessarily be the measure of such damages. This paragraph is based upon a breach of the contract by which appellees were to give appellant all necessary legal advice in the matter for which they were employed. In Bigelow on Estoppel (5th ed.), p. 182, it is said: “If there is an independent cause of action to each party upon a breach of the contract by the other, neither in reason can be compelled to allege his defense of a breach in a suit by the other. 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. * * * The defendant in the first action may not then be able to prove the facts which he relies upon in the second suit; and he is justified in reason in not raising an issue upon them. The contrary doctrine would often work manifest injustice.”
A well founded distinction is laid down in the books
“But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been there litigated and determined.” This rule was followed in Riverside Co. v. Townshend, 120 Ill. 9, 9 N. E. 65. See Bigelow, Estop. (5th ed.), p. 152, et seq., and p. 188, et seq.
In Equitable Trust Co. v. Fisher, 106 Ill. 189, where a purchaser at a sale under a trust deed had brought an action of forcible entry and detainer against the grantor in possession, and judgment rendered in favor of the purchaser, the court, in holding that such judgment in the forcible detainer suit was not a bar to a bill filed by such grantor to set aside the sale and judgment against him, said: “As a general rule a
In the case of Bridges v. Paige, 13 Cal. 640, cited by appellees, it was held that “anything which shows that the plaintiff has not the right of recovery at all, or to the extent he claims, on the case as he makes it, may be given in evidence upon an issue joined by an allegation in the complaint, and its denial in the answer.” It was held in that case, that under the general issue it was proper to show the negligence and unskilfulness of the attorneys in conducting the case in court. But that case further holds: “Where, however, something is relied on by the defendant which is not put in issue by the plaintiff, then the defendant must set it up. That is new matter — that is, the defendant seeks to introduce into the case a defense which is not disclosed by the pleadings.”
In Ressequie v. Byers, 52 Wis. 650, in a suit for malpractice, the defendant pleaded a judgment for the value of services before a justice of the peace, where the defendant was served with process, and appeared and answered, denying the allegations of the complaint, but at the trial before the justice the defendant did not appear, the court said: “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
“The issue in this action was not necessarily involved in the justice’s court, 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 disturbing any matter litigated in that case.”
The Supreme and Appellate Courts of this State have uniformly held that a former judgment is a bar to any mere defense that was or might have been pleaded in the former action; but the adjudications, as well as the statute, permit a defendant to plead his cross-demand or not, as he chooses, and the cases hold if the cross-demand was in fact actually involved in the former action, no matter in what form, it is barred by the judgment. And in holding that the matters set up in appellant’s counterclaim are not necessarily adjudicated in the former suit, and that the evidence offered in support of the counterclaim should have been admitted, we think we are fully sustained by the case of Goble v. Dillon, supra, wherein it is said that a final judgment “is not conclusive as to a cross-action, that is, an independent, affirmative cause of action in favor of the defendant against the plaintiff, unless that cause of cross-action was, in fact, involved in the isues of the former case, either as a set-off, a counterclaim or a defense.” See Brower v. Nellis, 6 Ind. App. 323; Schwinger v. Raymond, 83 N. Y. 192.
Applying to the third paragraph the principles of the common law, the matters therein set out could have been pleaded by way of recoupment. It asks for damages, unliquidated, resulting from the breach of
Thus it was held that negligence by an attorney is an admissible defense under non-assumpsit to an action on his bill, provided the work became wholly useless in consequence of that negligence. Bracey v. Carter, 12 Ad. & El. 373; 1 Chitty on Pleading, 495; Pom. Rem., sections 731-733.
In the case at bar the negligence of the appellees, as set out in the third paragraph, would not have been admissible under the general issue, for the reason that it could have nothing to do with the value of appellees’ services. It would have tended to defeat neither the whole nor a part of the value of such services. It states no mere defense, but purely a cross-action which has always been allowed at common law
In holding that the pleading states something more than a mere defense, it follows that it cannot be said that under the general issue the matter was necessarily adjudicated. If it was in fact adjudicated, it cannot be litigated again; but whether it was in fact so adjudicated must be determined upon the trial.
Judgment reversed, with instructions' to sustain appellant’s motion for a new trial.