point actually passed upon by the court and directly involved in the case.43 And expressions used in judicial opinions are always to be construed and limited by reference to the matters under consideration, and cannot be safely applied in their largest and most universal sense to dissimilar cases. 44 When the law governing a case has been once declared by the opinion of an appellate court on a direct appeal or writ of error, such opinion, on the retrial of the same case upon the same state of facts is res adjudicata, and is declared to be higher authority than stare decisis, so far as the particular action is concerned.45 The decision of the appellate court becomes the law of the case, and, upon a second appeal, is binding upon the court and the parties, and from which the court. is not at liberty to depart;46 and this though the same question comes up in a separate suit.47 § 1521. Pleading res adjudicata.-A plea of res adjudicata, showing the pleadings, findings of facts, conclusions of law, and judgment in the former action, shows thereby the issues and facts determined in such suit, and in whose favor, without further allegations.48 Where the judgment in a suit on a judgment is vacated, the original judgment still stands, and is not merged into the void judgment.49 The opinion of the court of appeals may be examined to determine the extent of the decree as res adjudicata.50 § 1522. Evidence of res adjudicata.-A judgment being a matter of record, it cannot be overcome as to its effect by evidence of any lower degree; but the recital in the decree as to certain service of defendant, though entitled to the same presumption of verity as any other, may be impeached by some extraneous mat Pac. 450, 1 L. R. A. 673; Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; Estate of Dorris, 93 Cal. 611, 29 Pac. 244; Emery v. Reed, 65 Cal. 351, Pac. 200; Allen v. Allen, 95 Cal. 184, 30 Pac. 213, 16 L. R. A. 646. 43 Norris v. Moody, 84 Cal. 143, 24 Pac. 37. 44 City of Pasadena v. Stimson, 91 Cal. 238, 27 Pac. 604; Coburn v. Brooks, 78 Cal. 443, 21 Pac. 2. 45 Lee v. Stahl, 13 Colo. 174, 22 Pac. 436. See People v. Holladay, 93 Cal. 241, 27 Am. St. Rep. 186, 29 Pac. 54; Palmer v. Railway Co., 2 46 Applegate v. Dowell, 17 Or. 299, 20 Pac. 429; Porter v. Muller, 112 Cal. 355, 44 Pac. 729. 47 Hilton v. Stewart, 15 Idaho. 150, 128 Am. St. Rep. 48, 96 Pac. 579. 48 Dixon v. Caster, 65 Kan. 739, 70 Pac. 871. 49 Abbott v. Abbott, 70 Kan. 423, 78 Pac. 827. 50 Gentry v. Pacific Live Stock Co., 45 Or. 233, 77 Pac. 115. ter 51 A motion to vacate a judgment for want of jurisdiction being a direct attack, the want of jurisdiction may be shown by matters outside the record.52 Where the parties are not the same, and the relief demanded is not the same, it is a question for the court to determine whether the former case is res adjudicata.53 Recitals in a judgment pleaded in bar are sufficient evidence of the matters therein recited.54 Judgment of dismissal must be on the merits, with the facts set out in the declarations of the judgment, in order to make it res adjudicata.55 A judgment on the pleadings is a judgment on the merits,56 but a dismissal without prejudice is not.57 A decision in election. contest is res adjudicata in an action in quo warranto between the same parties,58 or in an action for the fees of the office.59 In unlawful detainer, records in action resulting in judgment, under which plaintiff claims, are admissible, though defendant was not a party to that action.60 The burden is upon the one alleging former adjudication, and the record entry of a judgment in another court thus relied on is indispensable.61 The rule of res adjudicata is based upon public. policy, and the judgment is generally made conclusive not only as to the points decided, but as to all points which might have. been decided in the action.62 Parties in default are bound equally with those defending.63 A nonsuit, from any cause, is not a bar to a subsequent suit on the same cause of action.64 A decree against several defendants as to water-rights is not res adjudicata as to the rights of such defendants between themselves, unless the court expressly settle those rights under section 4852 of the Revised Civil Code of Montana.65 51 Parsons v. Weis, 144 Cal. 410, 77 Pac. 1007. 52 Dane v. Daniel, 28 Wash. 155, 68 Pac. 446. 53 Weatherwax Lumber Co. v. Ray, 38 Wash. 545, 80 Pac. 775. 54 Page v. Garver, 5 Cal. App. 383, 90 Pac. 481. 59 Sandoval v. Albright (N. Mex.), 93 Pac. 717. 60 McMillan v. Walker, 48 Wash. 342, 93 Pac. 520; City of Olympia v. Knox, 49 Wash. 537, 95 Pac. 1090. 61 Ex parte Stevenson, 20 Okla. 549, 94 Pac. 1071. 62 Bell v. Thompson, 153 Cal. 331, 55 Glass v. Basin etc., 35 Mont.. 95 Pac. 372. 567, 90 Pac. 753. 56 Bailey v. Etna Indemnity Co., 5 Cal. App. 740, 91 Pac. 416. 57 Averill Machinery Co. v. Allbritton, 51 Wash. 30, 97 Pac. 1082. 58 People v. Wilson, 6 Cal. App. 122, 91 Pac. 661. 63 Hough v. Porter (Or.), 95 Pac. 732. 64 City and County of San Francisco v. Brown, 153 Cal. 644, 96 Pac. 281. 65 Sloan v. Byers, 37 Mont. 503, 97 Pac. 855. § 1523. In partition.-A judgment in an action for partition is binding and conclusive as to title upon all the parties who are served with summons or appear, and a bar to a new action.66 It is conclusive upon the parties and privies that they were tenants in common and in possession of the land at the date of its rendition.67 But such judgment and partition shall not affect tenants for years less than ten, to the whole of the property which is the subject of the partition.68 In the absence of fraud or collusion, minors properly represented in an action for partition are bound as fully as if they had been majors and personally cited.69 The effect of a judgment in partition is to be determined by our statute, and not by the common law.70 A court in rendering judgment in partition of joint property incumbered by conflicting and general liens may make any order as to the sale of the property which the necessity of the case demands shall be made for the protection of the lienholders and the joint owners.71 Denial of confirmation of a sale in partition, authorized by section. 766 of the California Code of Civil Procedure, may only be with a just regard to the rights of all concerned.72 The order of a court for a partition of lands, or for a sale, in case a partition cannot properly be made, is not a final judgment in an action for partition. They are to be succeeded by a judgment confirming the partition sale.73 § 1524. Replevin.-In replevin, a judgment for the plaintiff, in order to hold the sureties on the undertaking, must be in the alternative,7 ,74 and must determine the controversy as to the whole property in dispute.75 The right of defendant to have a judg 66 Morenhout v. Higuera, 32 Cal. 289. 67 Morrill v. Morrill, 20 Or. 96, 23 Am. St. Rep. 101, 25 Pac. 362, 11 L. R. A. 155. 68 Cal. Code Civ. Proc., § 767. 69 Kromer v. Friday, 10 Wash. 621, 39 Pac. 229, 32 L. R. A. 671. 70 Morenhout v. Higuera, 32 Cal. 289. 71 Hagen v. Webb, 65 Kan. 38, 93 Am. St. Rep. 276, 68 Pac. 1096. 72 Dunn v. Dunn, 137 Cal. 51, 69 Pac. 847. 73 Hastings v. Cunningham, 35 Cal. 549; Stewart v. Taylor, 68 Cal. 5, 8 Pac. 605; Cooke v. Aguirre, 86 Cal. 479, 25 Pac. 5; Etchepare v. Aguirre, 91 Cal. 288, 25 Am. St. Rep. 180, 27 Pac. 668; Myers v. Moulton, 71 Cal. 498, 12 Pac. 505; Johnson v. Fraser, 2 Idaho, 404, 18 Pac. 48; Phipps v. Taylor, 15 Or. 484, 16 Pac. 171. 74 See Cal. Code Civ. Proc., §§ 514, 627, 667; Nickerson v. Chatterton, 7 Cal. 568; O'Connor v. Blake, 29 Cal. 312; Hynes v. Barnes, 30 Mont. 25, 75 Pac. 523; McFadyen v. Masters, 11 Okla. 16, 66 Pac. 284. 75 Muller v. Jewett, 66 Cal. 216, 5 Pac. 84. ment in his favor in the alternative is not an exclusive remedy, and he may maintain a separate action thereon.76 § 1525. On the merits.-In California, in cases other than those mentioned in sections 581 and 581a of the Code of Civil Procedure, judgment is rendered on the merits.77 Where an answer is filed, the court may grant any relief consistent with the case made by the complaint and embraced within the issue.78 The provisions of these sections apply to mandamus and quo warranto.79 § 1526. On report of referee.—A mandamus lies to compel the judge of a district court to enter judgment on the report of a referee.80 A judgment on the report of a referee must be construed by the report.81 § 1527. Decree must contain what.-All that a decree in a suit to foreclose a mortgage should contain is a statement of the amount due to the plaintiffs, a designation of the defendants who are personally liable for the payment of the debt, and a direction that the mortgaged premises, or so much thereof as may be necessary, be sold according to law, and the proceeds applied to the payment of the expenses of sale, the costs of the action, and the debt. Nothing further is required.82 The decree concludes the rights of all parties to the action. 83 The omission from the judgment foreclosing a mortgage of the name of a lienholder who is a party defendant is immaterial. 84 § 1528. Personal judgment-Relief from erroneous decree.In California, parties are at liberty to adopt, in the foreclosure of 76 Johnson v. Boehme, 66 Kan. 72, 97 Am. St. Rep. 357, 71 Pac. 243. 77 Cal. Code Civ. Proc., § 582. San Francisco Co., 27 Cal. 655. 80 Russell v. Elliott, 2 Cal. 245. 81 Mason v. Ring, 2 Abb. Pr. (N. S.) 322; Commercial Bank of Albany v. Ten Eyck, 50 Barb. 9. 82 Leviston v. Swan, 33 Cal. 480. See, also, Sichler v. Look, 93 Cal. 601, 29 Pac. 220; Raun v. Reynolds, 11 Cal. 14; Taggart v. San Antonio etc. Co., 18 Cal. 460; Boggs v. Hargrave, 16 Cal. 559, 76 Am. Dec. 561; Pechaud v. Rinquet, 21 Cal. 76; San Francisco v. Lawton, 21 Cal. 589; the early cases of Moore v. Reynolds, 1 Cal. 351, and Harlan v. Smith, 6 Cal. 173. 83 Montgomery v. Middlemiss, 21 Cal. 103, 81 Am. Dec. 146; San Francisco v. Lawton, 18 Cal. 465, 79 Am. Dec. 187. 84 Sichler v. Look, 93 Cal. 600, 29 Pac. 220. See Brady v. Burke, 90 Cal. 1, 27 Pac. 52. CONCLUSIVENESS OF JUDGMENT. 976 mortgages, the course pursued under the old chancery system, and take a decree adjudging the amount due upon the personal obligation of the mortgagor, and directing a sale of the premises, and the application of the proceeds to its payment, and apply after sale for the ascertainment of any deficiency, and execution for the same; or they may take a formal judgment for the amount due in the first instance.85 But a personal judgment is not a lien until after sale and deficiency.86 Section 246 of the Practice Act limits the lien of a foreclosure judgment or decree, whatever its form, to the mortgaged property until it is exhausted, and there can be no judgment lien upon other property until a deficiency is duly ascertained and docketed.87 Courts of equity are ever ready to grant relief from their decrees.88 Where the enforcement of a judgment violates his rights, a stranger thereto may maintain suit to enjoin it.89 § 1529. Effect of decree. If plaintiff prevail in an action to quiet title, a decree inserted in the judgment enjoining defendant from making any further contest on plaintiff's title, even if not strictly correct, does not injure defendant. Such decree does not preclude defendant from availing himself of an acquired title.90 § 1530. Judgment of divorce-When operative, etc.-A judg ment of divorce is effective to dissolve the marriage tie when the order for judgment is rendered and entered upon the minutes. and the failure or neglect of the plaintiff to have the judgment entered will not affect its validity, it being the duty of the clerk to make the entry at any time after the rendition, and the entry being but the evidence of the judgment already in operation 85 Cal. Code Civ. Proc., § 726, as amended 1895; Rowland v. Leiby, 14 Cal. 156; Englund v. Lewis, 25 Cal. 348; Chapin v. Broder, 16 Cal. 403. See Toby v. Oregon etc. R. R. Co., 98 Cal. 490, 33 Pac. 550. 86 Cal. Code Civ. Proc., § 726; Culver v. Rogers, 28 Cal. 520. 87 Weil v. Howard, 4 Nev. 384. As to deficiency judgment after foreclosure, see Black v. Gerichten, 58 Cal. 56; Blumberg v. Birch, 99 Cal. 416, 37 Am. St. Rep. 67, 34 Pac. 102; La Societe etc. v. Weidmann, 97 Cal. 507, 32 Pac. 583; Batchelder v. Brickell, 88 Goodenow v. Ewer, 16 Cal. 461, 90 Reed v. Calderwood, 32 Cal. 109. |