§ 1515. The same-Vacating judgment for.-A party may, under the Oregon statute,82 be relieved from a judgment for costs and disbursements entered against him if it shall appear that it was entered through mistake, inadvertence, surprise, or excusable neglect.83

E. F., being duly sworn, deposes and says:

I. That he is one of the attorneys for the plaintiff in the aboveentitled action, and as such is better informed relative to the above costs and disbursements than the said plaintiff.

II. That the items in the above memorandum contained are correct to the best of said affiant's knowledge and belief, and that the said disbursements have been necessarily incurred in the said action.

[JURAT.]

82 Or. B. & C. Codes, § 103.

[SIGNATURE.]

83 Weiss v. Meyer, 24 Or. 108, 32 Pac. 1025.

CHAPTER LVI.

CONCLUSIVENESS OF JUDGMENT.

§ 1517. Conclusiveness of adjudication, in general.-A decree of dismissal without prejudice to any action at law in a federal court is a bar to a subsequent suit in equity even in a state court. Judgment in a law action is conclusive upon the same issues raised in a subsequent equitable action; but an ordinary dismissal without prejudice is not final on the issues joined.2 A widow may make more than one application for allowance out of her husband's estate, or may dismiss an application and apply again.3 Judgment. by the owner bars the lessee from an action for failure to supply water for irrigation. Judgment against the insured is competent evidence against the insurer, though he had no knowledge of the suit.5 A witness interested in the result of the case is estopped by the judgment as fully as if he had been a nominal party. A defendant dismissed before judgment need not intervene or be bound by the judgment therein. A mother suing as guardian ad litem for injury to her child is precluded from subsequent suit for the loss of his time and earnings. It is presumed that a judgment disposes of all matters in controversy.9 Where a city and a railroad company are both liable, and the company is responsible to the city, a judgment exonerating the company is conclusive in suit by the city against the company over a judgment secured by the party injured against the city.10 A corporation which was not a party to a suit between plaintiffs and the corporation's grantor for an accounting is not bound by the decree.11 It will be presumed that all of defendant's claims to land were litigated in suit over the title, and he cannot afterwards claim title

1 Smith v. Cowell, 41 Colo. 178, 92 Pac. 20.

2 Budlong v. Budlong, 48 Wash. 645, 94 Pac. 478.

3 In re Bump Estate, 152 Cal. 274, 92 Pac. 643.

4 Farmer's High Line etc. Co. v. New Hampshire Real Estate Co., 40 Colo. 467, 92 Pac. 290.

5 City of Seattle v. Saulez, 47 Wash. 365, 92 Pac. 140.

6 American Bonding Co. v. Loeb, 47 Wash. 447, 92 Pac. 282.

7 Holt Mfg. Co. v. Collins, 154 Cal. 265, 97 Pac. 516.

8 Hammer v. Caine, 47 Wash. 672, 92 Pac. 441.

9 Towne v. Towne, 6 Cal. App. 697, 92 Pac. 1050.

10 City of Seattle V. Northern Pacific Ry., 47 Wash. 552, 92 Pac. 411. 11 Costello V. Scott (Nev.), 93 Pac. 1.

under a prior deed. 12 An immaterial finding not carried into the judgment is not binding in subsequent actions.13

A judgment is of no force except between the parties and privies, 14 except in some cases for specific purposes.15 The judgment of a competent court, when properly pleaded, is conclusive in a subsequent action between the same parties for the same thing, although it be palpably erroneous. 16 If a fact has been once litigated in a court of competent jurisdiction the judgment rendered therein forever estops the parties and their privies from again litigating the same fact.17 The doctrine has been broadly stated, however, that a judgment between parties is conclusive not only as to the matters which were in fact determined, but as to all other matters which might have been litigated as incidental or essentially connected with the subject-matter of the litigation, whether the same were or were not, as a matter of fact, considered. 18 Where several judgments have been rendered in actions between. the same parties in respect to the same subject-matter, the judgment last in point of time is conclusive. 19 One in possession of land, who is neither a party nor a privy to a judgment for the recovery of possession of it, is neither affected by the judgment as an instrument of evidence, nor can he be dispossessed by virtue of a writ issued upon it.20 On a trial by the court, it may and should decide the whole case.21 The same parties are not estopped in a

12 Nemo v. Farrington, 7 Cal. App. 443, 94 Pac. 874, 877.

13 Collins v. Gray, 154 Cal. 131, 97 Pac. 142.

14 Beckett v. Selover, 7 Cal. 228, 68 Am. Dec. 237; Shay v. McNamara, 54 Cal. 170.

15 Gregory v. Haynes, 13 Cal. 591. See, also, Davidson v. Dallis, 8 Cal. 227; Kittridge v. Stevens, 16 Cal. 381. 16 Wolverton v. Baker, 86 Cal. 591, 25 Pac. 54.

17 Hall v. Zeller, 17 Or. 381, 21 Pac. 192; Savage v. McCorkle, 17 Or. 42, 21 Pac. 444. See, also, Neil v. Tolman, 12 Or. 289, 7 Pac. 103; Barrett v. Failing, 8 Or. 152; Farquar v. Farquar, 20 Or. 69, 23 Am. St. Rep. 93, 25 Pac. 146; Finley v. Houser, 22 Or. 562, 30 Pac. 494; Crabill v. Crabill, 22 Or. 588, 30 Pac. 320; Harmon v. Auditor etc., 123 Ill.

133, 5 Am. St. Rep. 507, 13 N. E. 161; McWhorter v. Andrews, 53 Ark. 312, 13 S. W. 1099.

18 Denver etc. Water Co. v. Middaugh, 12 Colo. 434, 13 Am. St. Rep. 254, 21 Pac. 565; Johnson v. Johnson, 20 Colo. 143, 36 Pac. 898; Neil v. Tolman, 12 Or. 289, 7 Pac. 103; Sayward v. Thayer, 9 Wash. 22, 36 Pac. 966, 38 Pac. 137. Compare Union Pacific Ry. Co. v. Kelley, 4 Colo. App. 325, 35 Pac. 923; Gallup v. Lichter, 4 Colo. App. 296, 35 Pac. 985; Campbell v. Rankin, 2 Mont. 363.

19 Tyrrell v. Baldwin, 67 Cal. 1, 6 Pac. 867.

20 Le Roy v. Rogers, 30 Cal. 229, 89 Am. Dec. 88.

21 Griffin v. Cranston, 1 Bosw. 281; Van Valen v. Lapham, 13 How. Pr. 246.

Utah court from setting up the claim that the Idaho courts had no jurisdiction of the case tried therein, in reference to the use of the waters of a certain stream, as jurisdiction cannot be conferred or taken away by consent.2 Final judgments in the probate court on matters upon which it is authorized to deal are absolute, unless appealed from.23

22

§ 1518. In equity. The court may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves.24 Where a decision is made in a suit in equity upon any particular subject-matter, the rights of all persons whose interests are immediately connected with that decision, and affected by it, should be provided for.25 Equity has jurisdiction to vacate a judgment fraudulently altered, so as to include a defendant not served with process and not originally included in the judgment.26 A perpetual injunction restraining the collection of a non-negotiable note is a complete defense to the same when suit is brought on it by a subsequent purchaser for value without notice.27 The contention that the finding of the appellate court on the issue of fraud is not res adjudicata, if the determination of that question is not necessary to decide the case, is without merit, for the reason that defendant may interpose as many defenses as he has, and the court may determine all, though. any one would be sufficient.28 An infant defendant is as much bound by the decree in equity as a person of full age.29 And it is questionable under our practice whether he is entitled to have a day given in the judgment to show cause against it.30 But the probate of a will is not conclusive on an infant or person of unsound mind until one year after their respective disabilities are removed.31

§ 1519. Res adjudicata.-It is a well-recognized doctrine that a matter decided by a court of competent jurisdiction cannot be

22 Conant v. Deep Creek etc. Irr. Co., 23 Utah, 627, 90 Am. St. Rep. 721, 66 Pac. 188.

23 Greer v. McNeal, 11 Okla. 519, 69 Pac. 891.

24 Cal. Code Civ. Proc., § 578. 25 McPherson v. Parker, 30 Cal. 455, 89 Am. Dec. 129.

26 Chester v. Miller, 13 Cal. 558.

27 Randolph v. Hudson, 12 Okla. 516, 74 Pac. 946.

28 Clark v. Knox, 32 Colo. 342, 76 Pac. 372.

29 Joyce v. McAvoy, 31 Cal. 273, 89 Am. Dec. 172.

42.

30 Id. Cal. Code Civ. Proc., §§ 41,

81 Cal. Code Civ. Proc., § 1333.

contested again between the same parties.32 Nor is there any difference in this respect between a verdict and judgment at common law and a decree of a court of equity.33 And the fact that a judgment in a former action between the same parties, which determined the same points as those raised in the latter action, was erroneous under the law as subsequently declared by the appellate court in other cases between other parties, does not affect its force as an adjudication of the rights of the parties thereto, and those in privity with them,34 if the judgment is valid.35 But a judgment rendered in a prior action cannot be a bar to the prosecution of a subsequent action, so long as the time for appeal from the prior judgment has not expired, or it remains undetermined on appeal.36 And where a judgment in a former action, relied on as a bar, is not set forth in the record on appeal, it cannot be held to have constituted such a bar.37 A judgment against one trespasser which has not been satisfied is not a bar to a suit against another trespasser to recover for the same wrong.3 38 A former adjudication is not available unless pleaded;39 but the fact of a former suit and its disposition being fully set forth in the complaint, the issue of res adjudicata can then be raised by demurrer. 40 Otherwise, defendant should plead and prove a judgment decree or final order of a court of competent jurisdiction on the same issue.41

§ 1520. Stare decisis-Law of case.-Stare decisis is the policy of the courts, and the principal upon which rests the authority of judicial decisions as precedents in subsequent litigation. And this doctrine is not to be departed from, except when subsequent examination shows the case to have been decided contrary to principle. But a decision is not even authority, except upon the

42

32 See Dunstan v. Higgins, 138 N. Y. 70, 34 Am. St. Rep. 431, 33 N. E. 729, 20 L. R. A. 668, and cases cited.

33 Robbins v. Collier, 3 N. Mex. 231 (342), 5 Pac. 538. See Farquar v. Farquar, 20 Or. 69, 23 Am. St. Rep. 93, 25 Pac. 146; Collins v. Gleason, 47 Wash. 62, 125 Am. St. Rep. 891, 91 Pac. 566.

34 People v. Holladay, 93 Cal. 241, 27 Am. St. Rep. 186, 29 Pac. 54.

35 Page v. Garver, 5 Cal. App. 383, 90 Pac. 481.

36 Story v. Story, 100 Cal. 41, 34 Pac. 675; Brown v. Campbell, 100

Cal. 635, 38 Am. St. Rep. 314, 35 Pac. 433; Kerr v. Burns, 42 Colo. 285, 93 Pac. 1120.

37 Allin v. Williams, 97 Cal. 403, 32 Pac. 441.

38 Hattersley v. Burrows, 4 Colo. App. 538, 36 Pac. 889.

39 McLean v. Baldwin, 136 Cal. 565, 69 Pac. 259.

40 Lockhart v. Leeds, 12 N. Mex. 156, 76 Pac. 312.

41 Ortiz v. First Nat. Bank, 12 N. Mex. 519, 78 Pac. 529.

42 State v. Clark, 9 Or. 466. See Paulson v. Portland, 16 Or. 450, 19