The opinion
Brown, J.,
concurring. All the reasons stated in the foregoing opinion for reversing the summary judgment are sound in my estimation.
In addition, the summary judgment granted on the motion of defendants, Norman Cohen and I. R. Miller, should be reversed and set aside because their motion for summary judgment, as well as their answers and the answers or amended answer of other defendants, asserting the defense of
res judicata,
allege only that two other specific legal proceedings involve “judgments in said actions adverse to the plaintiffs” or that the same issues were determined in prior proceedings, without alleging what specific issues were determined. Certainly, averment of the specific issues was important, for example, where a bankruptcy case involving a bankrupt corporation is asserted as
res judicata
in a wilful tort case between individuals who were not parties of record in the corporate bankruptcy case.
Nowhere in the pleadings of any of the defendants is there any averment as to what issues and subject matter were involved in the other legal actions or proceedings, or that these were sustained by the same evidence, or involved the same claim, demand or cause of action, or that the judgments therein were final judgments. Defendants never pleaded the judgment or judgments which were rendered in the other two legal actions.
A judgment in another action, to constitute the defense of
res judicata,
requires the defendants to allege the prior judgments and to further allege what the issues were in the prior
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cases, so that the court can see whether the plea is available,
Redman
v.
North River Ins. Co.,
128 Ohio St. 615 ; and a former adjudication to be used as a defense is itself an ultimate fact which should and must be pleaded.
Norwood
v.
McDonald,
142 Ohio St. 299 , paragraph seven of the syllabus; 32 Ohio Jurisprudence 2d 122, Section 367. The prior judgment or judgments must, by pleading, be alleged to be final judgments which have not been superseded, reversed or appealed.
Petersine
v.
Thomas
28 Ohio 596 ;
Easterday
v.
Easterday,
28 Ohio Law Abs. 312 ; 32 Ohio Jurisprudence 2d 40, Section 290, Finality of Judgments. The prior judgment must involve the same claim, demand or cause of action and there must be identity of the subject matter.
City of Lakewood
v.
Rees,
132 Ohio St. 399 ;
Trout
v.
Marvin,
62 Ohio St. 132 ;
Suburban Home Mortgage Co.
v.
Hopwood,
83 Ohio App. 115 ; 32 Ohio Jurisprudence 2d 54, Section 304. An adjudication affects no claim which the parties had no opportunity to litigate.
State, ex rel.,
v.
Eagle Ins. Co.,
50 Ohio St. 252 ; 32 Ohio Jurisprudence 2d 65, Section 310.
Lastly, where the facts claimed to afford a defense to prior actions or legal proceedings are also sufficient to constitute a cause of action by way of a setoff, counterclaim or cross-action under the statutes, it is not necessary for the claimants to assert their claim by way of cross-petition, but they may institute and maintain a separate, new and independent legal action for such cause of action.
Witte
v.
Lockwood,
39 Ohio St. 141 ;
Swensen v. Cresop,
28 Ohio St. 668 ; Section 2323.40, Eevised Code; 32 Ohio Jurisprudence 2d 72, 73, Section 317. Therefore, plaintiffs in the instant case were not required to assert by cross-petition their wilfull tort claim in the prior mortgage foreclosure case or corporate bankruptcy case.
All of the foregoing reasons for reversing the summary judgment because of the fatally defective pleadings of the defendants and other legal grounds can be determined from an examination of the pleadings and transcript of the docket and journal entries, without any need for a bill of exceptions.
Tenesy
v.
City of Cleveland,
133 Ohio St. 251 .
Smith
v.
Diamond Milk Products, Inc.,
176 Ohio St. 143 , is distinguishable.