Finnerty v. Cummings

GRAY, J.,

pro

tem.

In a prior action respondent’s minor daughter, appearing by respondent as her guardian

ad litem,

recovered a judgment against appellant for injuries received in an automobile accident. Subsequently respondent brought this action to recover for her loss of her daughter’s earnings and for medical expenses incurred in treating her daughter's injuries. Appellant, in addition to other defenses, pleaded that the first judgment was

res judicata

of the second action. The court found adversely to appellant on this plea and rendered judgment against him. From this judgment appellant appeals, claiming that his plea of

res judicata

should have been upheld.

“ Among other requirements of a judgment pleaded in bar is this: that the action must be between the same parties in the same capacity and the judgment must be ‘in respect to the matter directly adjudged’. (Code Civ. Proc., subd.

2,

sec. 1908;

Laguna etc. Dist.

v.

Charles Martin Co.,

5 Cal. App. 172 [89 Pac. 993] ;

Hughes

v.

United States,

4 Wall. 232 [18 L. Ed. 303].)”

(Elliott

v.

Hudson,

18 Cal. App. 642, 653 [124 Pac. 103, 108].) Since respondent appeared in the first action as guardian to enforce her daughter’s right and in the second action, individually, to enforce her own right, the first judgment was not a bar to the second action

(Karr

v.

Parks,