Opinion
Opinion filed May 7, 1935. Respondent's Motion for Rehearing Overruled May 21, 1935. Writ of Certiorari Denied by Supreme Court July 9, 1935.
1. — Pleadings — Interpleader — Attachment Suit — Separate Proceeding — Property Right Involved. Under Sec. 1325, R.S. Mo. 1929, an interplea filed in an attachment proceeding is analogous to an action for replevin engrafted on the attachment proceedings and is a separate proceedings from the attachment and one in which the right of property is in issue.
2. — Pleadings — Counterclaim to Interplea. Under Sec. 777, R.S. Mo. 1929, first subdivision thereof, a counterclaim may be filed to an interplea in the attachment suit provided it arises on the transaction set forth in the complaint or is connected with the subject of action.
3. — Pleadings — Counterclaim to Interplea — Relief Granted on Counterclaim. Where a counterclaim is filed to an interplea in an attachment suit the Court has power to grant affirmative relief on the counterclaim in excess of the amount claimed by the plaintiff in his interplea.
4. — Pleadings — Interplea — Counterclaim — When Same Must Arise. The defendant's counterclaim set up in its answer to the plaintiff's interplea engrafted upon the original attachment proceedings, asserts a claim arising out of the contract or transaction which is the foundation of the interpleader's claim. The evidence in support of the counterclaim shows that it is based upon an alleged compromise of the interpleader's claim arising after the filing of the interpleader's petition. In this situation the counterclaim was available although it did not exist at the time of the commencement of the action.
5. — Judgment — Res Adjudicata — Failure to Plead Counterclaim When Available. While the interpleader defendant could have set up in the interpleader proceedings the counterclaim arising out of the alleged compromise of the interpleader's claim subsequent to his filing suit thereon, it was not compulsory that the counterclaim be asserted and the judgment in the interpleader proceedings would not make available a plea of res adjudicata.
6. — Pleadings — Attachment — Inteprleader — Suit on Attachment Bonds. Sec. 1285, R.S. Mo. 1929, provides that in any suit on attachment bond the obligor may avail himself of any set-off or counterclaim he may have against the party to whose use the suit is brought and have affirmative judgment for the excess over the plaintiff's cause of action and for costs.
7. — Pleadings — Defenses — Split Cause of Action or Defense — Counterclaim. The interpleader defendant having an option to plead a breach of the compromise of the subject-matter of the interpleader suit by way of counterclaim or as an independent action may elect the remedy and is not thereby guilty of splitting his cause of action. Held, that since defendant's counterclaim did not defeat primarily the interpleader's cause of action the defendant was entitled to elect whether or not he would plead a breach of the compromise agreement in the interpleader's suit or plead the same in a suit upon the attachment bond upon the interpleader's judgment, since where separate causes of action accrue to the parties out of the same transaction or set of facts cross actions may be maintained and neither will bar the other unless the facts necessary to authorize a recovery in one action are contrary to or inconsistent with those required to sustain a judgment in the other.
Appeal from Circuit Court of Pike County. — Hon. Edgar B. Woolfolk, Judge.
REVERSED AND REMANDED.
F.D. Wilkins for respondent.
(1) All issues which could have been disposed of on merits in former suit between same parties and privies are deemed settled and former judgment is bar, not only as to matters raised, but to all defenses which could have been raised. United States v. Lufcy, 49 S.W.2d 8, 14; Summet v. Realty Co., 208 Mo. 501, 511; State ex rel. Gilbert v. Eldridge, 65 Mo. 584, 585; Citizens Sec. Bank v. Gatewood, 36 S.W.2d 426; Shelly v. Ozark Pipe Line, 2 S.W.2d 115, 121. (2) Judgment is res adjudicata as to every issue which was within purview of pleadings and applies to every point properly belonging to subject-matter of issue which might have been brought forward. Citizens Bank v. Gatewood, 36 S.W.2d 426; Kansas City v. Southern Surety Co., 51 S.W.2d 221; Spring v. Giefing, 315 Mo. 525, 532; Powell v. City of Joplin, 73 S.W.2d 408, 412. (3) An interplea being in the nature of replevin ingrafted on attachment proceeding, a claim in the nature of a counterclaim may be allowed and a counterclaim on a money demand may be set up for affirmative relief as well as to defeat the plaintiff's claim. McCormick Harvesting Co. v. Hall, 104 Mo. App. 544, 552; Boehme v. Roth, 280 S.W. 730; Howard v. Gass, 131 Mo. App. 499; Collins v. John Pfingston Leather Co., 196 Mo. App. 611, 621, 622. (4) Plaintiff could have interposed any defense in former suit which he had that would have defeated interpleader's title or right. He could have shown interpleader's claim to be fraudulent. First Natl. Bank. v. K.C. Lime Co., 43 Mo. App. 561; Bank v. Boyer, 161 Mo. App. 143; Ottumwa Natl. Bank v. Totten, 114 Mo. App. 97. (5) Judgment is conclusive not only as to questions which were raised but as to every question which could have been raised. Powell v. City of Joplin, 73 S.W.2d 408; Bank v. Casualty Co., 270 S.W. 691, 696; Pierce v. Bank, 268 F. 495. (6) The matter pleaded in defendants' counterclaim and part of answer, stricken out, did not constitute and was not available as a defense to and could not be set off against an action on the attachment bond. State ex rel. v. Eldridge, 65 Mo. 584; Crary v. Standard Inv. Co., 285 S.W. 459. (7) Res adjudicata applies to parties and their privies; and parties and privies include all of the appellants herein. State ex rel. Terry v. Holtkamp, 51 S.W.2d 13; Morehead v. Cummins et al., 230 S.W. 656; Runnels v. Lasswell et al., 272 S.W. 1032; Dolfus v. Cohen, 261 S.W. 754; Davidson v. Davidson R.E. Co., 249 Mo. 474. (8) Unliquidated damages are not subject of set-off. State ex rel. v. Eldridge, 65 Mo. 584. (9) Under a general denial to an interplea plaintiff may show the interpleader's claim to be fraudulent and, therefore, no title. McCormick Harvesting Co. v. Hall. 104 Mo. App. 544; Bank v. Boyer, 161 Mo. App. 143, 155. (10) Appellant cannot collaterally attack the judgment by saying he had some defense he did not present. Crary v. Standard Inv. Co., 285 S.W. 459, 461. (11) The alleged agreement was not in the case and there was no evidence of such an agreement. Bobb v. Kier et al., 246 S.W. 926; Melvin v. Hoffman, 235 S.W. 107, 299 Mo. 464. (12) The answer and counterclaim constituted no legal and proper defense and a motion to strike out was proper. Shohoney v. Railroad, 132 S.W. 1050, 231 Mo. 131; Phillips v. Evans, 38 Mo. 305. (13) The court's action in sustaining plaintiff's motion to strike, if error at all, was waived. Fuggle v. Hobbs, 42 Mo. 537; Waldron v. Merseal, 162 Mo. App. 380, 383; Reynolds v. Davis, 260 S.W. 994, 996; Titus v. Development Co., 264 Mo. 239, 240. (14) Section 1285, Revised Statutes 1929, does not mean that the plaintiff in the original suit may avail himself of any set-off or counterclaim he may have against the party to whose use the suit is brought. Boudreau was a party to the attachment suit and plaintiff therein. 46 C.J., p. 851; Thompson v. Johnson, 40 N.J.L. 220, 222. (15) The proper remedy of a successful interpleader in an attachment suit is a suit on the bond. State ex rel. Stevenson v. American Surety Co., 74 S.W.2d 1094. (16) The court's remarks in excluding defendants' counterclaim was not error. Freidman v. Railways Co., 293 Mo. 235, 248; Moore v. Railroad, 283 S.W. 732, 735; Cromeens v. Sovereign Camp, 247 S.W. 1033; Stobier v. Transit Co., 203 Mo. 702. (17) The court did not err in refusing defendants a continuance and in allowing plaintiff to amend reply. Baker v. Railway, 39 S.W.2d 535, 327 Mo. 986, 1006; Miller v. Brick Co., 246 S.W. 960. (18) The evidence admitted on measure of damages was legal and proper. Deane v. Hanser, 83 Mo. App. 609, 614. (19) The court committed no prejudicial error in giving plaintiff's instructions and in refusing defendants' instructions. Authorities under Subdivisions 1 and II and in Argument, Points VIII and IX. (20) The verdict of the jury is for the right party and should be affirmed. Boudreau v. Brown et al., 39 S.W.2d 455, and cases cited hereinabove.
Staunton E. Boudreau and May May for appellants.
(1) The trial court erred in sustaining plaintiff's motion to strike defendants' answer and counterclaim on the ground that the matters therein pleaded were res adjudicata. "The doctrine of res adjudicata cannot be invoked by demurrer or motion to strike. Res adjudicata is an affirmative defense and must be pleaded and supported by proof that the matters adjudicated in the former suit were the same as are now presented for determination in the suit at bar." Beattie Mfg. Co. v. Gerardi, 166 Mo. l.c. 155; Kilpatrick v. Robert, 278 Mo. l.c. 263. (2) "In suit on attachment bond defendants had a right to avail themselves of their counterclaim." Sec. 1285, R.S. Mo. 1929; State ex rel Mathieson, 207 Mo. App. 676; McElvain v. Dorroh, 204 S.W. 824. (3) "Where the general owner of chattels is entitled to their possession, and it is so adjudged in an action of replevin brought against him by one having a special lien thereon, the latter, when sued on his replevin bond, may set up in mitigation of damages his special lien." Dolfuss v. Cohen, 261 S.W. 757. (4) "The interplea in the attachment suit was a separate proceeding from the attachment, and the right of property was the only issue involved therein, it being in the nature of replevin and grafed on the attachment proceedings." Green v. Powell, 46 S.W.2d 915, l.c. 919. "A judgment of the plaintiff in an action of replevin will not debar the defendant from asserting against the plaintiff a claim for compensation for the care of the property replevined in the replevin suit." Wright v. Broome, 67 Mo. App. 32. (6) "The sole issue in the interplea suit was the title to the property involved." Segar v. Foster (Ia.), 129 N.W. 681; 8 A.L.R. 690 and note. (7) "The matter set up in the counterclaim had not been in fact submitted and passed on at the trial of the interplea suit and was, therefore, not res adjudicata." Wright v. Salisbury, 46 Mo. 26. (8) " Res adjudicata does not extend to matters which the defendant might have pleaded by way of set-off, or counterclaim, but in fact did not set up. These he may produce, but is not bound to do so." Mason v. Summers, 24 Mo. App. 174. (9) "Only the issues common to both causes and put in issue by the pleadings are res adjudicata." Paving Co. v. Field, 132 Mo. App. 628. (10) "It is not the doctrine in this State that every possible issue that might have been tried under the pleadings in a given case is conclusively presumed to have been tried and the matter become res adjudicata. Only the matters that were actually considered by the court are settled by the judgment." Tootle v. Buckingham, 190 Mo. 183, l.c. 196; Boyer v. K.C., 205 S.W. 873. (11) "Deceit set up in defendant's answer and counterclaim was proper." Hall v. Clark, 21 Mo. 415. (12) "The judgment only concludes the parties as to point actually determined, that is, to issues tendered or joined by the pleadings, and decided, and not those which might properly have been, but were not." Barkhoffer v. Barkhoffer, 93 Mo. App. 381; Dickey v. Heim, 48 Mo. App. 120; Hingston v. Montgomery, 121 Mo. App. 465. (13) "There is no res adjudicata unless the second suit is not only between the same parties but between them in the same capacity." Kirk v. Ins. Co., 38 S.W.2d 519; 34 C.J. 756-757-894-998-999; State ex rel. v. Branch, 34 Mo. 592; Meyer v. Nishwitz, 198 Mo. App. 102; Windham v. Kline, 77 Mo. App. 46; Overshiner v. Britton, 169 Mo. 350; State ex rel. v. St. Louis, 145 Mo. 567. (14) " Res adjudicata is affirmative defense, and to raise the question it must be properly pleaded and the court erred in ruling the matter as res adjudicata. The same, not appearing on the face of the pleading, required proof." Kilpatrick v. Robert, 278 Mo. 257; Beattie Ins. Co. v. Gerardi, 166 Mo. 142; Bray v. Land Construction Co., 203 Mo. App. 642; O'Donnell v. Matthews, 284 S.W. l.c. 207; Nelson v. Jones, 245 Mo. 579; Munday v. Knox, 19 S.W.2d l.c. 497; Debert v. D'Arsy, 248 Mo. 619; Bell v. Hoaglin, 15 Mo. 254; Lemon v. Drainage Dist., 275 S.W. 44; Kelly v. Hurt, 61 Mo. 463; Scanlon v. K.C., 28 S.W.2d l.c. 89; Paul v. Huling, 125 Mo. App. 480. (15) Plaintiff's reply to defendants' answer and counterclaim was in effect a general denial. It stated no facts showing that the matters set up in the counterclaim were res adjudicata. It merely stated a conclusion in that respect. State ex rel. v. City of Clarence, 73 S.W.2d l.c. 807. (16) Counterclaim — "The items of defendant's counterclaim could not properly have been the subject of a counterclaim in the interplea suit." Sec. 7777, R.S. Mo. 1929; Miller v. Krigler, 83 Mo. 395. (17) "A demand cannot be set off against a plaintiff unless it existed as a demand in favor of defendant, and against plaintiff at the time of the bringing of the action." Barnes v. McMullins, 78 Mo. 260. (18) Set-off — "The sole issue in the interplea case was the ownership and possession of the property claimed. There was nothing in that case to set off." Workman v. Warder, 26 Mo. App. l.c. 6 and 7. (19) The court erred in commenting on the injustice of the litigant, plaintiff herein, in having to litigate for his award on the interplea (see court's remarks wherein it excluded defendants' counterclaim, Abstract of Record, pages 50-52). "The court erred in its comments on the merits of the case." Egan v. Ry., 227 S.W. 126; Vaughn v. May, 9 S.W.2d 156; Cable v. Johnson, 63 S.W.2d 442; Wair v. Amer. Car Foundry Co., 285 S.W. 155. (20) The court erred in allowing plaintiff to amend reply in the midst of the trial, and refusing defendants a continuance (see Abstract of Record, pages 44-45). "In the practical administration of justice no party should be permitted to have an unreasonable advantage over another." Miller v. Bowen Coal Co., 40 S.W.2d 490. (21) The court erred in refusing to admit evidence on defendants' counterclaim. "In administration of justice, the court should hold plaintiff to his contract. The compromise of a doubtful claim is a good consideration for a contract, and the evidence relating to the compromise of the plaintiff's claim in the attachment should have been admitted." Riley v. Cohnquette, 18 Mo. 226; Ward v. Telegram Co., 123 S.W. 15; Livingston v. Dugan, 20 Mo. 102; Dalkin v. Loom, 122 S.W. 176. (22) On measure of damages tending to prove value of property at time of interplea instead of value of property at time of institution of attachment suit, which is the criterion of value. State ex rel. v. Riley, Wilson Co., 76 Mo. App. 412; State ex rel. Gage Bros., 52 Mo. App. 464; Watson v. Harmon, 85 Mo. 443; Spencer v. Vance, 57 Mo. 427; State ex rel. v. Parsons, 109 Mo. App. l.c. 439. "Plaintiff was bound by the compromise settlement, and jury should have been so instructed." Combs v. Sullivan Co., 105 Mo. 235.
This is an action on an attachment bond given in the case of Joseph G. Boudreau against Riley Brown, a suit on an account with attachment in aid thereof.
On May 20, 1929, the sheriff, under the attachment writ, seized some oak dimension lumber, some railroad ties, a steam engine and some sawmill machinery, as the alleged property of the said defendant Riley Brown. A week or ten days after the levy the court authorized the sheriff to sell the attached property and ordered the proceeds of such sale to be paid into court the first day of the next regular term. On July 8, 1929, the Automobile Discount Corporation filed an interpleader in the case, as did also one William T. Smith. In October, 1930, the interplea of the said William T. Smith was heard to a jury, resulting in a verdict which found "the issues in favor of the interpleader, and we award him the following described property, to-wit: 11,611 feet of lumber, 400 railroad ties," and judgment was entered that the interpleader "have and recover of the plaintiff said lumber and ties as found by the jury, together with costs." The plaintiff Boudreau took an appeal, resulting in an affirmance of the judgment. [See Brown v. Boudreau, 39 S.W.2d 455.]
Thereafter, on August 10, 1931, said William T. Smith, filed his action against the principal and the sureties on the attachment bond given in the original suit supra. The petition is conventional and alleges as breaches of said attachment bond sued on that Boudreau failed to return to him the specific personal property awarded to him as the successful interpleader in the attachment suit of the alleged reasonable value of $533.50; that Boudreau failed to pay him the reasonable expenses incurred by him in traveling expenses, hotel bill, loss of time in attending court at two trials of the interpleader suit in the circuit court, amounting to $25; a reasonable charge for legal services required in the trial of his interplea and attachment suit in the circuit court and in this court on appeal, alleged as amounting to $250; and $8.69 for printing an additional abstract in the interpleader suit on appeal here, the total alleged damages aggregating $865, which equals the full penalty in the bond.
Defendants' answer was a general denial coupled with a counterclaim. Plaintiff's reply was a general denial.
During the progress of the trial, and over defendants' objection, plaintiff was permitted to file an amended answer to defendants' counterclaim, which set up a plea of res adjudicata, estoppel of the judgment rendered in the interpleader suit; that all the matters set up in the counterclaim "were available as proper matters to be litigated and determined, or were actually tried and adjudicated in the attachment suit" and finally determined adversely to defendants, and therefore defendants are estopped in the instant case from asserting any of the matters set up in defendants' alleged counterclaim. After an unavailing motion for a continuance the defendants filed an amended answer and counterclaim. This counterclaim, on motion of plaintiff, was stricken out.
The counterclaim in substance is to the effect that after the attached property had been sold by the sheriff by order of court, and after the interpleas of the Automobile Discount Corporation and of William T. Smith had been filed in the original attachment suit, the attorney for plaintiff Boudreau in the attachment suit, and the attorney for the interpleader William T. Smith, agreed that the Automobile Discount Corporation's chattel mortgage should be paid off out of the proceeds of the sale of the attached property, and that after paying the expenses incident to such sale, one-half of the balance remaining of the proceeds of such sale should be paid to said interpleader William T. Smith, and the other half to said Boudreau; that relying upon said agreement counsel for Boudreau paid the sum of $220.85 out of the proceeds of the sale of the said attached property to the interpleader, Automobile Discount Corporation, and its chattel mortgage was thereupon discharged and released of record, but that thereafter, instead of Smith complying with the agreement to compromise and settle their respective accounts with each other out of the balance of the proceeds of the sale of the attached property, Smith and his attorney fraudulently refused to comply therewith and continued to prosecute Smith's interplea in the attachment suit and obtained a judgment in his favor thereon in violation of said agreement to compromise their claims as heretofore set out; that this was the first knowledge that Boudreau or his counsel had that Smith and his attorney had fraudulently entered into said agreement with the purpose and design of tricking Boudreau into paying off the Automobile Discount Corporation's mortgage out of the proceeds of said attached property, so that Smith's claim would become a first lien upon the proceeds of the sale, in the event Smith prevailed on his counterclaim and thus lay claim to the full amount of the proceeds of the sale of the attached property and thereby cheat and defraud Boudreau out of the amount paid to pay off said Automobile Discount Corporation's mortgage, and of various items incident to the sale of the chattels, aggregating $267.27. The counterclaim further sets out that defendants have been put to great expense in defending this suit and have been caused to expend large amounts of money thereon "to the reasonable value of $1000." The counterclaim prays for said $267.27, together with $1000 actual and $1000 punitive damages.
Appellants here set up as error the ruling of the trial court in sustaining plaintiff's plea of res adjudicata and striking out defendants' counterclaim. The point is well taken.
On the question of res adjudicata it is to be noted at the outset that under the provisions of Sec. 1325, Revised Statutes of Missouri 1929 (Mo. St. Ann., sec. 1325, p. 1527), which permits an interplea to be filed in an attachment proceeding, such interplea is held to be analogous to an action for replevin engrafted on the attachment proceeding and is a separate proceeding from the attachment, and one in which the right of property is in issue. [State ex rel. Stevenson v. Amer. Surety Co. (Mo. App.), 74 S.W.2d 1094; Green v. Powell (Mo. App.), 46 S.W.2d 915; Brownell Wight Car Co. v. Barnard, 139 Mo. 142, l.c. 145, 40 S.W. 762; I. Stadden Gro. Co. v. Lusk, 95 Mo. App. 261, 68 S.W. 586; Huiser v. Beck, 55 Mo. App. 668, l.c. 675.] And it is no longer open to question but that a counterclaim under the first subdivision of our Code, sec. 777, may be filed in such interpleas provided the counterclaim arises on the transaction set forth in the complaint or is connected with the subject of the action, and that such counterclaim may be enforced to the extent of granting affirmative relief to the defendants by judgments in their favor for amounts above the amount found to be due to the plaintiffs. This liberal construction of our statutes in reference to counterclaims has been adopted with a view to settling all controversies in one action if possible. [McCormick Harvesting Mach. Co. v. Hill, 104 Mo. App. 544, 79 S.W. 745, and cases therein cited.]
Now, therefore, with reference to Smith's interplea in the original attachment suit, was Boudreau's counterclaim, which he now seeks to set up in the present suit on the attachment bond, of such character as can be held to have arisen out of the contract or transaction set forth as the foundation of Smith's claim of interplea, or to have been connected with the subject of that action so as to make it available as a counterclaim in the interpleader suit under the provisions of Sec. 777, Revised Statutes of Missouri 1929 (Mo. St. Ann., sec. 777, p. 776)? The alleged counterclaim, in our view, arises out of the transaction which was the subject of the action in Smith's interpleader suit, for it is in effect an action for damages arising out of the breach of an alleged compromise of the very action itself and could, therefore, have been pleaded in the interpleader suit.
It is urged, however, that the alleged counterclaim could not have been raised in the interpleader suit since it was not in existence at the time Smith's interpleader was filed. This would not, under the facts in the case, have precluded the counterclaim since the record shows that long before the first trial of the interpleader suit the alleged compromise set up in the counterclaim had been agreed to and the conditions thereof broken by the said interpleader Smith. In this situation the alleged counterclaim was available and could have been set up in the interpleader action since we have ruled that the character of the counterclaim arises under the first subdivision of our counterclaim statute, Sec. 777, Revised Statutes of Missouri 1929 (Mo. St. Ann., Sec. 777, p. 776), which does not require that such cause of action exist at the commencement of the action. Only counterclaims which fall within the second subdivision of Sec. 777, namely, those which arise in actions on contract in which cases any other cause of action "arising also on contract and existing at the commencement of the action," may be pleaded by way of counterclaim. Defendant Boudreau could, therefore, have interposed this counterclaim even though it arose after the suit was filed. [Jefflin v. Randolph, 222 Mo. App. 738, 7 S.W.2d 444; Andron v. Funk, 194 A.D. 258, 261, 185 N.Y.S. 139, l.c. 141; Hyman v. Jockey Club, 9 Colo. App. 299, 48 P. 671; Carnett Allen Paper Co. v. Midland Pub. Co., 156 Mo. App. 187, l.c. 199; 136 S.W. 736. See, also, Sec. 791, Revised Statutes of Missouri 1929 (Mo. St. Ann., sec. 791, p. 789).]
Concededly Boudreau did not file his alleged counterclaim in the interpleader suit and it is evidence that the learned trial court struck out the counterclaim in Smith's action on the bond in the instant case below on the theory that the matters set up by way of counterclaim could and should have been litigated in the interpleader suit, and therefore the doctrine of res adjudicata applied. In this he erred, for though the alleged counterclaim could have been filed by Boudreau in the interpleader suit, had he so desired, yet his failure so to do, in light of the issues raised in the interpleader suit and the resulting judgment therein, and the character of the alleged counterclaim, did not however make available the plea of res adjudicata in the instant case. [15 R.C.L. sec. 451, p. 976; Crary v. Invest. Co., 313 Mo. 448, 285 S.W. 459, l.c. 461.]
Section 1285, Revised Statutes of Missouri 1929 (Mo. St. Ann., sec. 1285, p. 1501), specifically provides that in any suit on an attachment bond any obligor may avail himself of any set-off or counterclaim he may have against the party to whose use the suit is brought and that, if said set-off or counterclaim shall exceed in amount the damages proved, judgment shall be rendered against the relator, and in favor of the defendant setting up the set-off or counterclaim for the amount of the excess and for all costs.
The rule that a party may not split his entire cause of action or defense does not apply to a set-off or counterclaim which may be pleaded or not at the defendant's election. [Summet v. City Realty Brokerage Co., 208 Mo. 501, 106 S.W. 614; Dawson v. Quillen, 61 Mo. App. 672.]
The proof of the defendants' counterclaim would not have defeated plaintiff in the issue in the interpleader suit for the facts alleged in the counterclaim have no bearing on the question of plaintiff Smith's title or right to possession of the chattels at the time the attachment was effectuated. Had the counterclaim been pleaded in the interpleader suit and the evidence in support thereof believed by the jury, it would have resulted in a separate verdict for the defendant on his counterclaim and would not have been in defense of Smith's claim to title or right of possession of the chattels. The subject-matter of the counterclaim was, therefore, not involved in the determination of the issue of the former interpleader suit in such wise as that the judgment therein necessarily negatived the facts on which the defendant has to rely to establish his counterclaim, and the judgment in the interpleader suit is therefore not a bar to the defendant's counterclaim in the present action on the attachment bond.
As said in 34 C.J., sec. 1279, p. 867, "where separate causes of action accrued to the parties out of the same transaction or set of facts, cross-actions may be maintained and neither will bar the other, unless the facts necessary to authorize a recovery in one action are contrary to or inconsistent with those required to sustain a judgment in the other."
"While the failure of a defendant to allege and prove facts purely defensive to an issue on trial between him and the plaintiff renders such matters res adjudicata after judgment, and estops him from again presenting them (1 Van Fleet on Former Adjudication, sec. 198), yet, when defensive facts also constitute an affirmative cause of action against the plaintiff, the defendant has the option to interpose them as a defense, or to reserve them for an independent or cross-action. If he refrains from presenting them as a defense, the judgment in the action against him does not bar nor adjudicate his affirmative cause of action upon them, and he is free subsequently to maintain it. [Virginia-Carolina Chemical Co. v. Kirvin, 215 N.S. 252, 257, 260, 30 Sup. Ct. 78, 54 L.Ed. 179; Brown v. First Nat. Bank of Newton, Kan., 132 F. 450, 452, 66 C.C.A. 293, 295; Id., 196 U.S. 641, 25 Sup. Ct. 796, 49 L.Ed. 631; Watkins v. Amer. Nat. Bank of Denver, 134 F. 36, 40, 67 C.C.A. 110, 114; Northwestern Port Huron Co. v. Babcock, 223 F. 479, 481, 482, 485, 486, 139 C.C.A. 27, 29, 30, 33, 34.]" [Pierce v. National Bank of Commerce, 268 F. 487, l.c. 496.]
It follows that the trial court erred in sustaining plaintiff's plea of res adjudicata and striking out defendants' counterclaim. The judgment should be reversed and the cause remanded. It is so ordered. McCullen, J., concurs; Hostetter, P.J., not sitting.