
    No. 4
    No. 18393
    L. B. Clark v. Alexander Baranowski et al.
    Error to the Court of Appeals of Cuyahoga county.
    1027. RES AJUDICATA—Of two contrary former adjudications, last in point of time will control—Former ajudication must be plead in order to avail—Failure to plead and prove constitutes waiver.
   MARSHALL, C. J.

1. Where there have been two former actions in which the same issue has been decided contrarily, and where there was an opportunity to set up the judgment rendered in the cause first decided as a bar or estoppel in the action later decided and a failure or neglect to plead such judgment in the later action, the last adjudication in point of time will control.

2. Where a party to an action desires to avail himself of a former adjudication of the same issue, such former adjudication must be pleaded and proved.

3. The doctrine of res adjudicata is a branch of the law of estoppel and may be waived, and a failure or neglect to plead and prove a former adjudication constitutes a-waiver.

Judgment affirmed.

Robinson, Jones, Matthias, Day, Allen and Conn, JJ., concur.  