This judicial controversy originated when, allegedly, "on the 23rd day of June 1945 the plaintiff was improperly charged with and required to pay additional sales tax for the years 1937 and 1938" (quoting from the declaration), by the State Tax Commission. Appellant paid the amount assessed, and thereafter filed in the Circuit Court of Harrison County, wherein he resided, this action to recover the amount so paid. The action was based on the authority of Section 8, Chapter 113, Laws 1938, Section 10122, Code 1942, providing that "Any person improperly charged with any tax and required to pay the same, may recover the amount paid, together with interest, in any proper action or suit against the Commissioner, and the circuit court of the county in which the taxpayer resides or is located shall have original jurisdiction of any action to cover any tax improperly collected. It shall not be necessary for the taxpayer to protest against the payment of the tax or to make any demand to have the same refunded in order to maintain such suit."
Appellee pleaded res judicata in defense of the action, exhibiting with the plea, the original order of the State Tax Commission; the final judgment of the Circuit Court of Hinds County; the judgment of this Court affirming the Hinds County Circuit Court judgment; the per curiam of the Supreme Court of the United States dismissing the appeal there from this Court, and denying certiorari, for want of jurisdiction; the decree of this Court affirming that of the Chancery Court of Hinds County; and the per curiam of the Supreme Court of the United States dismissing the appeal from this Court, and denying certiorari, because the decree of this Court was based upon a non-federal ground. *Page 494
It will be noted, therefore, that this matter has been twice before us. Viator v. State Tax Commission, 193 Miss. 266,5 So.2d 487; Viator v. Edwins, Sheriff, et al., 195 Miss. 220,14 So.2d 212. And twice before the Supreme Court of the United States, Viator v. State Tax Commission, 316 U.S. 644, 62 S.Ct. 1109, 86 L.Ed. 1728; and Viator v. Edwins, Sheriff, et al.,321 U.S. 744, 64 S.Ct. 518, 88 L.Ed. 1047.
The appellant filed a replication, contesting the defense of res judicata. On the pleadings the Circuit Court of Harrison County entered a judgment for appellee. Nothing was before the trial court other than the pleadings, including the certified copies of the orders and judgments, supra, exhibited with appellee's plea of res judicata, and the opinion of this Court, unaccompanied by its record, in 193 Miss. 266, 5 So.2d 487. The judgment of the trial court, from which appeal brought the case here again, recited: "This cause coming on to be heard on this day of a regular term of the Circuit Court on the declaration of the plaintiff, the plea of res judicata and exhibits thereto filed by the defendants, and the replication of the plaintiff to said plea, and the court having heard and considered the same, and argument of counsel thereon, is of the opinion that the said plea of res judicata is well taken and should be sustained."
We are of the opinion that in so holding, on what was before the Court and forming the foundation of its judgment, the trial court was in error. Such matter was inadequate to form a sufficient basis to sustain the application of the doctrine of res judicata. This doctrine extends to the judgments of all courts, 30 Am. Jur. Sec. 163, Judgments, p. 909, but is not to be predicated upon administrative action, ibidem, Sec. 164, p. 909. The statute, Sec. 10122, Code 1942, makes the order of the Tax Commission not finally conclusive, and does not require protest against payment, or demand for refund, before the aggrieved taxpayer may file an action to recover a tax with which he was improperly charged. This statute *Page 495 prevents the application, on the issue of res judicata, of the part of Sec. 164, same topic, 30 Am. Jur., Judgments, p. 909, announcing that "it is clear that the doctrine of res judicata applies to a judgment rendered by a court upon a review of a decision made by an administrative body," unless such judgment were a final judgment rendered by a court of competent jurisdiction on the merits. Only such a judgment can operate as a conclusive determination of a cause of action. Section 172, 30 Am. Jur. 914; Coffman v. Brown, 7 Smedes M. 125, 15 Miss. 125, 45 Am. Dec. 299; Sec. 201, 30 Am. Jur. 940; Johnson v. Walker,86 Miss. 757, 39 So. 49, 1 L.R.A. (N.S.), 470, 109 Am. St. Rep. 733; Mosby v. Wall, 23 Miss. 81, 55 Am. Dec. 71.
Parties are precluded from relitigating the same facts, regardless of the form of action. Sec. 178, 30 Am. Jur. 920; Fair et al. v. Dickerson, 164 Miss. 432, 144 So. 238; Agnew v. McElroy, 10 Smedes M. 552, 18 Miss. 552, 48 Am. Dec. 772. The mere fact that the relief sought is the same in the two actions does not necessarily make the causes of action identical within the meaning of the doctrine of res judicata. Sec. 176, p. 919, ibidem; nor does the fact that a person invokes the jurisdiction of a court preclude him from questioning its jurisdiction of the subject matter when its judgment is asserted as res judicata. Sec. 201, p. 940; ibidem. The doctrine is not a bar to subsequent action, if the judgment in the former action was rendered because of a misconception of the remedy available or of the proper form of proceeding. Sec. 210, ibidem. Murphy v. Hutchinson, 93 Miss. 643, 48 So. 178, 21 L.R.A. (N.S.) 785, 17 Ann. Cas. 611. All of which brings us down to the sole test here, and that is, was there enough before the trial court from which it could derive authority to sustain the plea of res judicata, as such doctrine was announced, supra, and in Browne v. Merchants Company,186 Miss. 430, 191 So. 120? In other words, were the judgments exhibited alone sufficient to prove that the merits of the case had been adjudicated in *Page 496 a court of competent jurisdiction? Unless that were done, it would be beside the point, to consider the number of courts and forms of action the litigation has involved. The determination of that question, furthermore, does not require overruling, in whole or in part, the cases in which the exhibited judgments were rendered, and nothing we say here is to be construed as overruling the prior decisions of this Court in the former litigations between these parties.
It is generally held that the existence and contents of a judgment, sought to be made available as a basis for the application of the doctrine of res judicata, must be proved by offering the record, or a copy thereof, in evidence, Sec. 273, 30 Am. Jur. p. 993. One reason for the rule is that the judgments of trial courts are subject to review, and that in order to review them, a record of the proceedings must be made, for the appellate court, which cannot take judicial notice of the records. Divide Creek Irrigation District v. Hollingsworth, 10 Cir.,72 F.2d 859, 96 A.L.R. 937. In Bridgeman et al. v. Bridgeman, 192 Miss. 800, 6 So.2d 608, we held that a court cannot, in determination of a particular case, take judicial notice of what was done in any other case, even in the same court, so as thereby to supply facts essential to the support of the particular case out of those shown in the prior case. In Armstrong v. Jones,198 Miss. 627, 22 So.2d 7, involving same court, and same parties, it was held that, generally, an issue whether prior cases between parties involved same issues as present case should be determined on pleadings and proof, and that court could not have recourse to judicial notice in such situation so as thereby to supply facts essential to the support of the particular case out of those shown in the prior case.
This does not mean that in considering previous decisions of this Court, the facts therein set forth may not be compared or contrasted with the facts of a case later being tried, to determine whether there is enough analogy to constitute precedent or stare decisis, law of the case, *Page 497 relevancy, and so on. Such procedure has no similarity to a resort to the record of facts in a previous case, in order to supply out of them, necessary facts absent from the record of a case, where it is sought to apply the doctrine of res judicata.
Furthermore, we have said that where the record of a decree of a court of competent jurisdiction is offered in evidence, every presumption is to be indulged as to the correctness of the facts on which it is founded, and which appear of record. Hardy v. Gholson, 26 Miss. 70, 4 Cush. 70. And where a decree is relied on as evidence, the proceedings upon which it is predicated must accompany it. Goddard v. Long, 5 Smedes M. 782, 13 Miss. 782. Compare, also, True-Hixon Lbr. Co. v. Thorne, 171 Miss. 783,158 So. 909. We have also held that, under some circumstances and conditions, it is proper to show by parol that a former suit, pleaded in bar, was not decided on the merits, Robinson v. Lane, 14 Smedes M. 161, 22 Miss. 161.
Under the above authorities we have concluded that we cannot determine from the mere pleadings, exhibited copies of the judgments, and our opinion, supra, whether or not the merits of the controversy between the parties here were, or could have been, properly litigated in the other trials, appealed to this Court from the Circuit and Chancery Courts of Hinds County, respectively, supra. And whether or not there was present, at the time, competent jurisdiction to try the cases on the merits of the controversy, or, if so, whether or not this controversy was actually tried on the merits. See Stone, Chairman of State Tax Commission, v. Kerr, 194 Miss. 646, 10 So.2d 845. We cannot borrow from the records of those cases the necessary evidence absent from the record here, either by resort to such records for use as evidence in the instant case, or by judicial notice thereof.
This situation is not benefited, in our judgment, by a stipulation in the record agreeing that the opinion of this Court in 5 So.2d 487-488, 489, be considered by the Court on the hearing of this cause as evidence on behalf *Page 498 of the plaintiff below, appellant here. The appellee did not offer the opinion in evidence. It was offered by the appellant, and recourse to that opinion, which is also in 193 Miss. 266, reveals this announcement by the Court: "Whether this order of the State Tax Commission is supported by evidence was not before the court below and is not before us here, for the reason that under Sections 72 and 73, Code 1930, the court to which a case has been removed by a writ of certiorari is `confined to the examination of questions of law arising or appearing on the face of the record and proceedings.' Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173; Hamilton v. Long,181 Miss. 627, 180 So. 615." The opinion further states that: "The assessment here made by the Chairman of the State Tax Commission sufficiently complies with these requirements, it became thereby prima facie correct, and the taxpayer was given an opportunity both by the Chairman of the Commission and by the Tax Commission itself to negative by evidence the facts on which the assessment was based. The order of the State Tax Commission being simply one approving the assessment made by its chairman, it was not necessary for it to again set forth the facts on which the assessment was made." It will thus be seen that we cannot determine from the opinion alone, aside from its record, that the trial had there was one on its merits, as the facts were not before the Court, where the case had been brought by a writ of certiorari. This opinion, furthermore, was simply agreed to be considered as in evidence, was not agreed to be conclusive, and does not comply with the rule defining the record of a judgment.
In addition to the other authorities on the subject set out, supra, it was held by this Court in Dogan et al. v. Brown, Ex'r,44 Miss. 235, that a party claiming a benefit under a decree must produce the entire record of the suit; the decree alone is not sufficient as other parties might show that it was vacated, set aside or reversed, besides it is essential to its validity that the jurisdiction of the *Page 499 Court over the parties should appear. It was also held in that case: "Within the scope of the cases cited, the recital of due and legal service made a prima facie case of the notice to the legatees; but not conclusive; for the same cases hold, that other parts of the record may be resorted to, to show what is the actual truth." Compare the "prima facie case" mentioned in the5 So.2d 487 opinion of this Court with the "prima facie" mentioned in the case from which we have just quoted. So, we think that the opinion of this Court referred to in the stipulation of this case, as stated supra, does not reveal enough as it is unaccompanied in the evidence of this case by the record on which it is founded, and is therefore not sufficient to form the basis of the application of the doctrine of res judicata, which requires that a cause be litigated on its merits before it can be used for such a basis.
Section 10122, Code 1942, existing at the time the opinion in5 So.2d 487 was rendered, created a new and special jurisdiction to determine issues arising between a sales taxpayer and the State Tax Commission, and hence was the only court having competent jurisdiction to hear appellant's complaint that he was improperly charged, and decide on the merits whether he was entitled to recover the tax paid or not. The act confers on that court "original jurisdiction of any action" to recover any tax improperly collected, with right of appeal to this Court, and hence the court, which heard only a certiorari issue, could not and did not render a judgment on the merits, which authority the Legislature had confided to the Circuit Court of Harrison County in this case, same being the home of appellant. The opinion in 5 So.2d does not disclose that this statute was called to the attention of the Court, but does say, as quoted supra, "whether this order of the State Tax Commission is supported by evidence was not before the court below and is not before us here." *Page 500
Therefore, the judgment of the circuit court is reversed and the cause remanded for further proceedings not inconsistent with these views.
Reversed and remanded.
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