Alkus v. Rodh , 4 Daly 397 ( 1873 )

By the Court.^*—J. F. Daly, J.

—It appears to me that the judgment should be affirmed. Without passing on the question whether the decision of a motion to vacate a judgment, on the ground that a summons had not been served therein, would estop'either party to the action from denying any matter determined in such motion, it is enough to say that the plaintiff in this action did not prove enough to show a former adjudication upon the question of the service of the summons in the Common Pleas. The records produced to sustain the allegation that the summons was not served, do not show that that question was ever litigated between the parties or at issue between them. “ The principle upon which judgments are held to be conclusive upon the parties, required, that the rule should apply only to that which was directly im, issues and not to everything which was incidentally brought into controversy during the trial” (Green 1. on Ev. vol. 1, § 523). The judgment must be according to the allegations and the proof. To show that the matter alleged to be finally determined was at issue between the parties, it is necessary to produce the pleadings. To show that it was actually litigated between them, it is necessary to produce the pleadings and sometimes the evidence on the trial. No less strict rule can be applied to adjudications of motions than to determinations of actions. It was the duty of the plaintiff here to show that the question of the service of the summons was directly at issue in the motion in this court. To do so he should, at least, have produced the moving papers and those read in opposition, and the order referring the matter to the referee. It was not enough to produce the referee’s report reciting the order of reference and giving an opinion merely on the very vital point involved, and then to produce an order which does not state on what ground the decision is based. For all that appears it may be that the judgment was sought to be vacated on several grounds besides the falsity of the affidavit of service, and that on one of these other grounds the court granted the motion. The plaintiff below did not make out even a prima facie case.

Judgment affirmed.

* Present, Daly, Ch. J., Larrehore and J. F. Daly, JJ.