
    Price v. Bonnifield.
    Former Adjudication' : Judgment ox Demurrer. — When a petition on a cause of action, appearing ou its face to be barred by the statute of limitations, is demurred to for that reason, and the demurrer sustained, and another suit is subsequently brought upon the same cause of action, the petition therein alleging facts, showing that the statute of limitations has not run, the latter suit cannot be maintained, as the judgment upon the demurrer in the first suit, although error, was a former adjudication and a bar to any other suit.
    Error to the District Court of Laramie County.
    The action in the court below was instituted by Wesley B. Bonnifield, the plaintiff, to recover of George F. Price, the defendant, a sum of money alleged to be due upon a decree and judgment of the district court of the 9th judicial district of the state of California. The defendant answered: First. — A general denial. Second. — That the action was barred by the laws of California. Third. — A judgment recovered in the district court of the 1st judicial district of Wyoming Territory in favor of the defendant, for the same cause of action alleged in the petition. Fourth. — Other special matter.
    Upon the trial of the cause, the plaintiff offered in evidence a transcript of a decretal order, to which the defendant objected on the ground that it was incompetent, immaterial and irrelevant, and that it was not properly au-tlienticated. The plaintiff also offered, eyidence a certified copy of a part of the laws of the state of (California, to the admission of which the defendant objected and excepted.
    The defendant, to maintain his plea of a former judgment in bar of the action, offered -in evidence certain records of the first judicial district court of Wyoming, and the evidence-of E. R.. Johnson, called as a witness as to the identity of the cause of action in the former suit, and in the pending suit.
    The case was tried by the court without a jury; the court rendered judgment for the plaintiff below.
    
      McLaughlin Steele, for plaintiff in error.
    The court below erred in admitting the transcript in evidence offered by the plaintiff. The same was irrelevant and incompetent to sustain the allegations of the plaintiffs petition; it was a decided order in an action for the foreclosure of a mortgage, and not a judgment as alleged.
    A judgment is defined to be the final determination of the rights of the parties in an action or proceeding. The language of a judgment, is not that it is decreed or resolved, but that it is considered by the court that the plaintiff recover, or, that the defendant go hence without day.
    The court below erred in rendering the judgment in favor-of the plaintiff, Bonnifield, and against the defendant, Price. The former judgment pleaded and proven in bar, estopped the plaintiff to recover in this action. The judgment of a court of competent jurisdiction, is not only final as to the matter actually determined, but as to every other matter which properly belongs to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time, and this is so, whether the trial be had upon the merits to a jury, or judgment be upon a demurrer to the petition. Bruen v. Sone, 2 Barb., 586; Southgate v. Montgomery, 1 Paige, 41; Bouchard v. Bias, 3 Denio, 243: Miller v. Covert, 1 Wend., 487; Baggett 
      v. Williams, 3 B.arn. & Cress., 241; Christmas v. Russell, 5 Wallace, 807; Clearwater v. Meredith, 1 Wallace, 25; G-oodrichv. City of Chicago, 5 Wallace, 573; Beloit v. ikTor-gan, 7 Wallace, 622; Q-ardner v. Buckbee, 3 Cow., 127; v. Sternberg, 4 Cow., 563.
    Beyond question the bar is not defeated, because the special matter of the second suit is different from the first, if it be founded on the same title. Stevens y. Hughes, 31 Penn. St., 385: Ciarle v. Sammons, 12 Iowa, 370.
    An adjudication by a competent tribunal is conclusive, not only in the proceeding in which it is pronounced, but in every other, where the right and title is the same, although the cause of action may be different. 2 Smith’s Leading Cases, (7th Am. ed.,) 788, 789.
    A judgment extinguishes the cause of action, and if the plaintiff brings two actions for the same cause, a judgment in one is a good bar to the other. Nichole. Mason, 21 Wend. 339 ; Thomas v. Rumsey, 6 John., 26 ; Miller y. Manice, 6 Hill, 114; Doty v. Brown, 4 Comstock, 71; White y. Coats-worth, 2 Selden, 137; Castle y. Noyse, 4 Kernan, 329.
    The statutes of limitation are statutes of repose; they stand on an equal footing with other statutory defences, and should not be discriminated against by the courts. Spring y. (fray, 5 Mason’s C. C. Repts., 523; Seldon v. Jackson, 41 Barb., 55.
    
      Johnson f Potter, for defendant in error.
    The first error assigned in the motion for a new trial, is the admission of the transcript. The objection of irrelevancy is untenable; that of incompetency is disposed of by the clerk’s certificate, which identifies the seal attached, as that of the court.
    The second error assigned in the motion is the admission of the laws of California; but as the objection is general, stating no ground, it was properly overruled.
    The third, that the findings are not sustained by sufficient evidence, is untenable, by reason of the failure of the record to show affirmatively that it contains all the evidence. In the absence of such affirmative statement, the presumption is, that there was sufficient testimony. 3 Gr. & Won. U. T., 1230; Powell on App. Pr., 200; PEouch v. Deity, 3 Inch, 385; Snowsden v. Warder, 3 Rawle, 101; May v. Bayers, 13 Inch, 412; Boles v. Plummer, Ibid., 448; Fuller v. Ruby, 10 Grey, 285; McMullen v. The State, 13 Mo., 30; 10 Ohio St., 168; 24 Penn. St., 72. This record contains no such statement.
    The fourth, that the findings are contrary to law, is involved in the foregoing proposition.
    Although the defense of former judgment could not be pressed, and is not involved in consequence of the above-mentioned defect in the record, it may be well to submit the question as to whether the judgment on demurrer, in this case, would bar another action, in which the petition stated a good cause of action. Freeman on Judgments, 212 -231; Clark v. Young, 1 Cranch, 181; Auroria City v. West, 7 Wall, 82; Could v. E. $ B. R. R. Co., 1 O., 526. But the question in this case is res judicata. Bonnifield v. Price, 1 Wyo. The question of limitation stands on the footing in the record; but, on its merits, the evidence brings Price within the exceptions, and this court has already so decided in Bonnifield v. Price.
    
   Peck, J.

Bonnifield sued Price, and one Tyson in November, 1873, in the first district court, upon a judgment alleged in the petition to have been obtained by him in California against them in 1861. It appeared by the petition, that the suit was instituted more than five years after the rendition of the original judgment.

The territorial statute of December 10, 1869, in force at the commencement of the action, at sections 14, 19 and 28, declared that an action upon a judgment should be commenced within five years from the accruing of the cause, allowing a suspension in case of absence,- absconding and concealment. Price demurred to the petition as not setting forth a cause of action, because the cause alleged in it did not accrue within five years next before the commencement of the suit; the district court rendered judgment for the defendant upon the demurrer, Bonnifield appealed, and this court at its March term for 1874, affirmed the judgment. No appeal was taken from that decision. After-wards, in June, 1874, Bonnifield brought a second suit against Price and Tyson in the district court on the original judgment. In addition to the statement of the judgment, alleging only that it was not barred by the statute of limitations of California or Wyoming, because the defendants had not resided in either jurisdiction since its rendition,.Price plead the decision of the court, as á former adjudication, also the bar of the statute. At the trial the former adjudication was proved, and proof adduced as to the other issue, and the district court held against him as to the former, and for him as to the latter defense. Bonnifield appealed, and this court at its March term for 1875, reversed as to the defense of limitation, but affirmed as to that of a former adjudication; after which the case was non-suited below. Afterwards, in July, 1876, Bonnifield brought a third, being the present suit against Price and Tyson in the district court on the original judgment; in addition to the statement of the judgment, alleging only that it was not barred by the statute of limitations of California or Wyoming, because neither of the defendants had been within the state or territory since the rendition of the judgment, Price plead in bar the judgment which had been rendered in the first of these three suits, at the trial, which was without a jury, proved the former judgment, the district court held that it did not constitute a bar, and rendered judgment accordingly for Bonnifield. Price now appeals, presenting to us the question, whether the defense did or did not consti tute a bar.

Tyson was not joined, nor did he appear in either of the three suits brought in the territory. The statute of limitation in force at the commencement of the first suit in the district court, was simply remedial; the decision of this court in it, 1 Wyo., 172, arose from a confusion between remedy and right. The proposition adopted by the court is not supported by principle, nor sanctioned by sound learning; is opposed to the common law, and flatly disobedient to the rule which has uniformly existed in the supreme court of the United States since the organization of that court, and'yet, this court sits as a common law court, and is imperatively bound by the federal jurisprudence. Had Bonnifield appealed from that decision of this court, there cannot be an intelligent doubt that the decision would have been reversed, and his judgment, which, so far as disclosed in his petition, was as vital when declared by this court to be extinct, as it was when rendered in California, protected. He however allowed that decision of this court to become a finality, and we are thus compelled to hold that he is now bound by it as a finality. But we also hold that it is the law of this court only as to the suit in which it was rendered; that it establishes no precedent for general practice ; and that, outside of that suit, the law of this court is the reverse of that which was announced by it in that case upon the demurrer.

The allegations in the second suit as to limitation, were of no matter that entered into the cause of action, set up in the suit; relating to remedy alone, as premature, could not properly have been alleged in the pleadings, unless the bar of limitations were plead, and then, of course, only in reply to the plea. These allegations were, therefore, purely surplusage, which Price could have stricken out on motion; hence the second suit set up the identical cause of action that was set up in the first. The two suits were upon the same thing; the plea of a former adjudication, interposed in the second, was true, and upon a principle which is as well settled, as uniform and as imperative, as a principle of law can be; a principle indispensable to protection against that worst mischief in the administration of the law, — useless and vexatious litigation, (for a party may have his day in court, but only his day,) the plea should have been sustained, and the controversy ended. We hold that the decision of this court in the second suit, on the defense of a former adjudication, was erroneous, is of no authority by the suit, furnishes no precedent for general practice, does not express the law of this court. The non-suit in the second action terminated it, leaving the claim as it was at the commencement of the suit.

The third suit is, as to cause of action and the defense of a former adjudication, simply a repetition of the controversy in the second. The judgment of the district court is reversed, and judgment rendered for Price, the defendant below, upon his defense of a former adjudication, with the costs of the district court, and the costs of the appeal.

Judgment reversed.  