Swensen v. Cresop ( 1876 )

Wright, J.

The case was appealed from a justice, and in the court of common pleas, Cresop filed his petition against Swensen & Sears to this purport. Swensen & Sears had recovered judgment against Cresop on his note. Previous to the rendition of such judgment, Cresop had paid twenty dollars on the note, which was never credited, and not taken into consideration in the suit against him. He now sues to recover back that twenty dollars.

A demurrer to this petition was overruled. The answer says that in the trial of the suit on the note, defendant, then Cresop, was present, and confessed judgment for the amount.

The case was tried upon the pleadings, and judgment rendered for plaintiff below, Cresop. Petition in ■ error was presented in the district court, which affirmed the judgment, and petition in error was filed in the supreme court. The question to be decided is this: Judgment is recovered against a defendant. Had he properly defended, he could have reduced the amount by showing payments made. He neglects to do this. Can he afterward bring a new suit to recover the amount of these judgments? A litigation between parties is conclusive upon all matters in issue, when carried into judgment. It is not only conclusive as to matters actually mooted, but also those which the parties might have controverted in the cause. Bridge Co. v. Sergeant, 27 Ohio St. 238.

In the suit on the note, Cresop might have shown that he had made these payments. This he omitted. He cannot do so now.

A judgment may be impeached for fraud, but Cresop makes no allegation of this' kind, nor does he show any reason whatever why he did not offer his defense.

The payments which had been made were strictly matters of defense, and as such should have been insisted upon when the opportunity offered. They were not matters of set-off' or counterclaim, which, under the code, a party may set up or not, the only penalty for not doing so being in the matter of costs.

Judgment of district court reversed, and cause remanded to common pleas for further proceedings.