It is universally held in this country that a judgment to work an estoppel must be a final judgment; and, if appealable, final on appeal, or the time for appeal he passed.
A plea of res judicata must aver that the former judgment has not been superseded, reversed or appealed from; Hornick v. Holt rup (Ky.) 76 S. W. 874 ; but it is also held that it is not demurrable if a plea fail to aver that a former judgment has not been appealed from; Fenn v. Roach & Co. (Tex.) 75 S. W. 361. If a supplemental bill set up a former judgment and does not allege that it was final, it is not demurrable, because, if not final, the , trial should be continued until it becomes so ; Theller v. Hershey, 89 Fed. 575. The effect of the former judg ment will be suspended pending an appeal therefrom ; Purser v. Cady, 120 Cal. 214, 52 Pac. 489. The doctrine of res judficata applies even though the amount in contro versy in the former suit was so small that the party was not entitled to a review in an appellate court; Johnson Co. v. Wharton, 152 U. S. 252, 14 Sup. Ct. 608, 38 L. Ed. 429.
But in England a judgment is none the less effective as an estoppel although it is liable to be reversed on appeal;. 13 Halsb. Laws of England 325.
Evidence of a former recovery is admis sible under a plea of non assumpsit; Stone v. Stone, 2 Cra. C. C. 119, Fed. Cas. No. 13,488; Hempstead v. Stone, 2 Mo. 65; but it is also held that it is not available under a general denial; N. A. & C. Ry Co. v Cauley, 119 Ind. 142, 21 N. E. 546; Jones v. Lavender, 55 Ga. 228. It may be specially pleaded in bar, or may be shown under the general issue ; Kimball v. Hilton, 92 Me. 214, 42 Atl. 394. It cannot be given in evidence under the general issue, but must be pleaded specially ; Coles v. Car ter, 6 Cow. (N. Y.) 691; under a plea of not guilty in ejectment, the defendants can show res judicata; Bruner v. Finley, 211 Pa. 74, 60 Atl. 488. The better and usual practice is to plead the issue and set up fully the former judgment and record therein. The practice appears not to be uniform; see Big. Est. 761, with a reference to articles on
Pleading Estoppel in Mich. L. Rev. (1911).
Unless the former record is presented at the hearing of the second case, effect will not be given to it as res judicata, but the court may take judicial notice of its own records and examine and consider the for mer record where the case was as to plain tiff splitting its cause of action ; Bienville W. S. Co. v. Mobile, 186 U. S. 217, 22 Sup. Ct. 820, 46 L. Ed. 1132.
When the decree in the former case is general in its terms, the opinion in that case may be considered in order to deterniine what questions were presented and decided; D'Arcy v. Staples & Hanford Co., 161 Fed. 733, 88 C. C. A. 606. But it is said that the courts are not hound to search the rec ords of other courts and give effect to their judgment, and that who relies upon a former adjudication in another court must properly present it the court in which he seeks to enforce it. Secondary proof will be received of a judgment when the record is lost ; U. S. v. Price, 113 Fed. 851.
In order that the judgment in a former case may be conclusive in a second suit be tween the parties, it must be shown either by the record or by extrinsic evidence that the same question was necessarily raised and determined in the former suit. If there be any uncertainty on this head on the record, the whole subject matter will be at large and open to a new contention unless extrinsic evidence be given to show the precise point involved and determined. lf, upon the face of the record, anything is left to conjecture as to what was involved and decided, there is no estoppel when it is pleaded and noth ing conclusive when it is offered in evidence ; Russell v. Place, 94 U. S. 606, 24 L. Ed. 214.
Where a former judgment goes both to de fects of form and also to the merits, a judg ment which does not designate as between the two will be presumed to rest on the former. But if the judgment on demUrrer is on the merits, it becomes "res judicata"; Bissell v. Spring Valley, 124 U. S. 225, 232, 8 Sup. Ct. 495, 31 L. Ed. 411.