
    Spurlock, Plaintiff in Error, v. The Missouri Pacific Railway Company.
    Ties Judicata. To sustain a plea of res judicata, there must be evidence to show that the matters in issue and decided in the first suit are the same as,those presented for determination in the second.
    
      Error to Morgan Circuit Court.—Hon. Q-. W. Miller, Judge.
    Reversed.
    
      James P. Ross for plaintiff in error.
    
      T. J. Portis and E. A. Andrews for defendant in error.
   Hough, J.

This suit was decided by the circuit court in favor of the defendant, on the ground that the matters now in issue were considered and decided in favor of the defendant in a former suit between the same parties. The judgment in the former suit is stated to be one of non-suit. The pleadings in that case are preserved in the transcript before us, but neither the rulings of the court upon which the judgment of non-suit was based, nor the judgment itself appear in the record. It may be that the .former judgment is a bar to a recovery in the present action, but a plea of res judicata should he supported by proof that the matters in issue and decided in the first suit, are the same as that presented for determination in the second, as neither the circuit court nor this court can take, judicial notice of such matters. Banks v. Burnam, 61 Mo 77; Kelly v. Hurt, 61 Mo. 463. The judgment of the circuit court must, therefore, be reversed and the cause remanded.

All the judges concur.  