I concur in the judgment. Further consideration of the question presented has satisfied me that in view of the circumstances of this case the result reached is correct. It is in fact made to appear to us that since this appeal was taken and while it was pending in this court, the very judgment which was "the whole basis and foundation" of the action before us and which was absolutely essential to the maintenance of such action, has been reversed by this court. As said in Ballard v. Searls,130 U.S. 50, [32 L. Ed. 846, 9 Sup. Ct. Rep. 418], the object of this action was "to aid the execution" of such judgment.
Our attention has been called to our judgment of reversal by appellant here, and it is undisputed that such reversal was of the identical judgment alleged in plaintiff's complaint in this action, which judgment was the whole basis and foundation of this action. These matters, going to the very foundation of plaintiff's action and absolutely precluding any *Page 776 recovery by him, are shown, as they necessarily must be shown, by evidence not contained in the record on appeal. Justice Lorigan's opinion clearly shows why this was the only possible way by which these matters could be made to appear. As I have said, there is no dispute as to the facts. Practically, the defendant in this case has established by evidence introduced in this court, a part of such evidence being our own judgment of reversal in another case, that by reason of something that has occurred since the appeal was taken, plaintiff has no right to maintain this action. I am of the opinion that the doctrine of judicial notice is not involved, and that the real question is whether such matters as are here asserted may be brought before this court on motion and supported by evidence outside the record, and considered in disposing of the appeal. For all practical purposes this is what defendant has done, although he may have done it somewhat informally. Justice Lorigan has shown that matters often arise subsequent to an appeal which may be brought before an appellate court and considered and acted on in disposing of the appeal. I can conceive of no good reason why such course may not be followed under such circumstances as appear here. Manifestly it is in the interest of justice that it should be done. I do not think that the conclusion we have reached impairs the effect of the rule declared in some of our decisions that a court will not in one case, take judicial notice of the record or proceedings in another case in the same court.
Sloss, J., and Shaw, J., concurred.