I am not able to agree with the conclusion reached by a majority of the court in this case. Waiving all other questions, I think that the judgment in the first action is a bar to the present action. "Whether a former judgment will operate as a bar to an action depends upon the identity of the two causes of action and of the parties." (Parnell v. Hahn, 61 Cal. 131.) In the case at bar, the two actions were between the same parties, and upon the same identical cause of action, — namely, a promise to pay four thousand dollars, and a mortgage to secure it, made and executed in 1892. Respondent cannot claim that the cause of action is the new promise made in 1895; for, under that view, the mortgage would not cover it. (Southern Pacific Co. v. Prosser,122 Cal. 413; Wells v. Harter, 56 Cal. 342.) Whether or not a renewal of a debt secured by a mortgage does, in any case, extend the life of the mortgage, is a question about which there is some conflict in the authorities. It was held, however, in SouthernPacific Co. v. Prosser, 122 Cal. 413, that when the promise is made after the statute of limitations has run, then it constitutes a new cause of action, which must be sued on, as such, and does not renew or extend the mortgage; but when the acknowledgment is made before the statute has run, and while the debt is still alive, as in the case at bar, then the original obligation is the cause of action, and carries with it the mortgage given to secure it. Therefore, in the case at bar, the two suits in question were upon the same cause of action, — the original obligation, — and judgment having gone against respondent in the first suit, that judgment is a bar to the second. The fact that in the first suit respondent did not present his case fully enough, as he might have done, gives him no legal right to try it over again in another suit, upon the same cause of action. This principle is fully stated inWoolverton v. Baker, 98 Cal. 628, as follows: "A party cannot litigate his cause of action by piecemeal, and after a judgment against him, seek in another action to obtain relief dependent upon the transaction therein adjudged, by bringing forward claims and demands properly belonging to the first action. The judgment against him is conclusive, not only of what was in fact determined, but also of all matters which might have been presented in support of his cause of action and litigated therein. The rule is stated by Vice-Chancellor Wigram inHenderson v. Henderson, 3 Hare, 115: `Where *Page 277 a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as a part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.'" (Citing cases. See also Wells v. Edmison, 4 Dak. 46, and cases cited; Hamilton v. Quimby, 46 Ill. 90; Crew v. Pratt,119 Cal. 149.)
A judgment does not fail to be a bar, merely because it was rendered on demurrer. As was said in Terry v. Hammonds, 47 Cal. 32, whether or not such a judgment is a bar "depends upon the questions, — 1. Whether the demurrer went to the merits of the action; and 2. Whether the cause of action is the same." (See Bigelow on Estoppel, 56.) "If parties join issue upon questionsof law or fact, before a competent court, they must abide the decision." (Trescott v. Lewis, 12 La. Ann. 197.) "In petitory actions the defendant is bound to plead all the titles under which he claims to be owner, and a final judgment rendered in favor of the plaintiff may be pleaded as res adjudicata against any title which the defendant was possessed of at the time, butfailed to plead." (Shaffer v. Scuddy, 14 La. Ann. 576). InHamilton v. Quimby, 46 Ill. 90, it was held that "a former adjudication of the matter in controversy is conclusive between the parties, in a subsequent proceeding upon the same matter, not only as to the matters actually determined, but as to every other thing then within the knowledge of the complainant which might have been then set up as ground for relief and litigated in the first suit."
In the case at bar, the court finds that the judgment in the first case "was based solely on the ground that by the complaint in said action the claim of plaintiff in said action appeared *Page 278 to be barred by section 337 of the Code of Civil Procedure." This was a final determination against respondent upon the cause of action set up in his complaint in that case, and which is the same cause of action set up in the case at bar; and upon what principle can he be allowed to litigate that adjudicated question in another action? There is not even the pretense that he failed to properly present his case in the former action through inadvertence, mistake, surprise, or excusable neglect. When he commenced the former suit, he knew the fact which he now says is necessary to a full statement of his cause of action, but did not aver it; his attention was specially called to the defect in his complaint, by demurrer; the court sustained the demurrer, and gave him leave to amend, and he refused to do so; and he now contends that after his appeal from the judgment, and after its affirmance, he could then commence and maintain a new suit on the same cause of action by simply putting into the complaint in the second suit what he refused to put into the complaint in the first. If this can be done, then there is no end of litigation, and no limit to multiplicity of actions. As before stated, there is here no new cause of action, and no new facts not existing within respondent's knowledge at the commencement of the first suit. In my opinion, the judgment and order appealed from should be reversed.
Rehearing denied. *Page 279