Hubbard v. Flynt , 58 Miss. 266 ( 1880 )

Campbell, J.,

delivered the opinion of the court.

It is not true that appellant- was compelled to exhibit a supplemental bill in her former suit to have the sale made after her bill was filed set aside. She might have done so ; but she had the right to await the result of her suit, and then to exhibit her bill to assail the proceeding in execution of the power of sale in the mortgage. The matter of this bill was not adjudicated in the former suit. It was not presented by the pleadings, and, therefore, could not have been adjudicated. The mere fact that it might have been introduced into the suit if the complainant had chosen to do so, does not make such matter res judicata. There is a distinction between this and matter involved in the record of the former case, and which, being so involved, might have been litigated and decided, and which is held to be a matter adjudicated because it might have been. The bill presents facts entitling the complainant to relief, and the demurrer should be overruled.

The decree sustaining the demurrer is reversed, the demurrer overruled, and the cause remanded, for the defendant to answer the bill within thirty days after the mandate herein shall have been filed in the court below.