Fehringer v. F. H. Martin Drug Co.

Mr. Justice Gabbert delivered the opinion of the court: In order to constitute an estoppel by judgment pleaded as a bar to a second action it must appear that the same identical question was in issue in the former action between the same parties, or their privies, and determined by the judgment therein; Hickey v. Anheuser Bush Brewing Association, 36 Colo. 386, 85 Pac. 838; Water Supply & S. Co. v. Larimer & W. R. Co., 25 Colo. 87, 53 Pac. 386; City of Denver v. Lobenstein, 3 Colo. 216, Williams v. Hacker, 16 Colo. 113, 26 Pac. 143. The judgment so pleaded, however, will not operate as an estoppel unless it appears either upon the face of the pleadings or by extrinsic evidence that the precise question in the second action was raised and determined in the first; Russell v. Place, 94 U. S. 606, 24 L. Ed. 214. It will be observed from the pleadings of the parties that in the action pleaded as a bar there is nothing in either the pleadings or judgment to indicate that plaintiff’s cause of action was litigated and determined therein. The defendant pleaded that it was, but plaintiff, by his replication, raised an issue on this question.- With an issue on the question of the identity of the causes of action made by the pleadings upon which the motion for judgment was based, it did not appear that the cause of action was the same in both cases; Moorhead v. Erie M. & M. Co., 43 Colo. 408, 96 Pac. 253. This was an issue of fact which could only be determined from evidence. A motion for judgment on the pleadings can not prevail unless, from the facts thereby established, a judgment on the merits can be pronounced; Mills v. Hart, 24 Colo. 505, 52 Pac. 680, 65 Am. St. 241. Counsel for defendant contend that, because of the [449] stipulation, the court in determining the motion considered the testimony and instructions in the former case. The record will not hear this construction. It recites in substance that the cause was heard on defendant’s motion for judgment on the pleadings, — nothing else is mentioned or referred to in the record of the proceedings or judgment. Had the cause been disposed of by determining the facts in issue from testimony introduced the record would have so recited. As it does not we must assume that the consideration of the motion was limited to the pleadings upon which it was based. The judgment of the district court is reversed and the cause remanded with directions to overrule the motion. Judgment reversed. Chiee Justice Musser and Mr. Justice Scott concur.