McLean v. Hansen

Gary, P. J.

The instrument on which this suit is brought is copied in Potter v. Gronbeck, 117 Ill. 404.

The appellee pleaded the judgment in that suit in bar of this. In addition to what appears in that report, the plea now shows that the three last named parties to the instrument then joined in the plea of non esi factum, that “it is not their deed.” The Superior Court held the bar good. As Potter could not maintain a suit in his own name upon the instrument at all, his want of success would be no bar to a suit by the party in whom the right of action, if any there be, is.

But further, the determination in that suit that the instrument was not their deed, is no determination that it is not the several deed of each. The face of the paper shows that it is not theirs collectively, but of each separately. “Mor will an action against the defendants which fails for a misjoinder, preclude a subsequent proceeding against one.” 2 Smith’s L C., 784; citing Miller v. Manice, 6 Hill, 114; Stingley v. Kirkpatrick, 8 Blackford, 186; Kirkpatrick v. Stingley, 2 Carter, 269.

The opinion of the Supreme Court, when Potter was plaintiff, discusses a matter of defense, which may or may not be again in evidence, and which may or may not be available to the appellee; but the action of the whole series of courts before whom the question could come, in a case in which, as the Supreme Court say, “in no event can the present plaintiff recover,” is without prejudice to the rights of the present appellant. Merrin v. Lewis, 90 Ill. 505, and cases in the 15th Ill. there cited; Gaar v. Hurd, 92 Ill. 315.

The application for final judgment here must be denied, as a defense under the general issue filed, may exist, that this record does not show. The case went off on the plea of res judicata. It was error to hold that this suit was barred by the Potter suit, and the judgment must be reversed and the case remanded.

Reversed, and remanded.