I cannot agree with my brethren that the motion for rehearing should be granted. Under the settled law of this state, our opinion at a former day of this term, affirming the judgment herein, was correct unless the judgment in the divorce case between La Coste and Mrs. La Coste is res adjudicata as to the good faith of Mrs. La Coste in making her defense to said suit, and that she had probable grounds for so doing. For this judgment to be res adjudicata the following must appear:
(1) Identity in the thing sued for.
(2) Identity of the cause of action.
(3) Identity of the persons and of the parties to the action.
(4) Identity of the quality in the persons for or against whom the claim is made. Philipowski v. Spencer, 63 Tex. 607.
In the former suit (La Coste v. Mrs. La Coste, for divorce), the only question was whether plaintiff, John La Coste, was entitled to a divorce. The question of attorneys' fees was not in the case either by pleading or proof. In that suit John La Coste was plaintiff and Mrs. La Coste was defendant. Neither of plaintiffs herein was in any sense a party to that suit. Mrs. La Coste is not a party to this suit. In the suit at bar plaintiffs, who were lawyers for Mrs. La Coste in the divorce suit, are suing in their own right for attorneys' fees. It is too plain for discussion that the parties are not the same. The cause of action is not the same. The parties are not suing in the same right or quality. Under all the decisions, as I understand them, res adjudicata does not exist.
Moreover, for a judgment to be res adjudicata it must be pleaded. The judgment in the divorce suit was not pleaded as res adjudicata by appellants against John La Coste in this suit, and hence appellants cannot avail themselves of that bar to La Coste's defense herein of lack of good faith and probable cause on the part of Mrs. La Coste in the divorce suit, as a matter of law. Philipowski v. Spencer, 63 Tex. 604; City of Houston v. Walsh, 27 Tex. Civ. App. 121, *Page 187 66 S.W. 109 (writ of error denied). In City of Houston v. Walsh, Judge Pleasants says:
"We are further of opinion that appellant, not having pleaded that the matter in controversy in this suit was res adjudicata, could not have availed itself of such defense, even if same had been shown by theevidence." (Italics ours.)
The granting of the motion for rehearing, and reversing and rendering judgment for appellants, is manifestly wrong. The motion should be overruled.