Lerner v. Bischoff , 193 So. 236 ( 1940 )

The only issue presented — whether the indebtedness sued on exists — has never been passed upon. My associates concede this, for in the majority opinion it is stated that the first suit was dismissed "because it was evident that plaintiff was not in a position to produce written proof of the indebtedness". The only question which was involved in the earlier suit was whether parol evidence of the debt should be admitted in view of the fact that the suit had been brought more than twelve months after the death of the alleged debtor. Our opinion in that first case shows clearly that only that issue was presented. See Lerner v. Bischoff et al., 157 So. 822, in which we said:

"* * * the only one (defense) with which we are now concerned is that which is based upon Act No. 207 of 1906, as amended by Act No. 11 of 1926 (page 11), and which reads, in part, as follows:

"`That parol evidence shall be incompetent and inadmissible to prove any debt or liability upon the part of a party deceased, if a suit upon the asserted indebtedness or liability shall have been brought within a delay of twelve (12) months after the death of the deceased.' Section 2."

Obviously the question of whether a debt existed was not determined in that case, and I cannot read that record without concluding that the only question considered below, or in this court, was not whether the debt existed, but solely whether oral evidence concerning it might be introduced.

Now that the note has been found, there is no reason — unless prescription has accrued — which should prevent the holder from attempting to assert his rights under it. The effect of the judgment in the earlier suit was merely to nonsuit the plaintiff, for it clearly states that it is based on the fact that the evidence tendered was not admissible.

The force and effect of a judgment and whether it constitutes res judicata depends not upon its actual wording, "but upon the issues considered and the stage of the proceedings at which the order or decree was rendered." Laenger v. Laenger, 138 La. 532,70 So. 501, 504.

It is well established that the plea of res judicata is to be strictly construed. West v. His Creditors, 3 La.Ann. 529; Kendig Co. v. Campbell, 2 McGloin 275; State v. American Sugar Ref. Co., 108 La. 603, 32 So. 965; R. McWilliams, Ltd. v. Gulf States Land Imp. Co., 111 La. 194,35 So. 514; General Outdoor Adv. Co. v. Hollander, 9 La.App. 339,120 So. 490; Adkins v. Cason, La.App., 170 So. 366.

I respectfully dissent.