“It would be unthinkable in our system of jurisprudence to hold that each taxpayer of a municipality could bring a suit to attack *487 an annexation and that res judicata would not apply because there was not an identity of parties.”
How later courts described this case
- “It would be unthinkable in our system of jurisprudence to hold that each taxpayer of a municipality could bring a suit to attack *487 an annexation and that res judicata would not apply because there was not an identity of parties.”
Written by the judges who cited it.
The opinion
ON MOTION FOR REHEARING
PER CURIAM.
Defendant vigorously contends that we erred in stating in the opinion that “it should also be apparent that our decision in White has eliminated from this case the issue of res judicata.” Counsel for defendant assert that the issue of res judicata remained in the case even though reasonableness was not an issue in White because a judgment is conclusive not only as to questions raised but as to all questions that could have been raised. That, of course, is the general rule. See Powell v. City of Joplin, 335 Mo. 562 , 73 S.W.2d 408 . It is said that even though none of the plaintiffs in White were residents of the annexed areas they could have raised the issue of reasonableness in their petition and therefore the judgment in White is res judicata of that issue.
In our consideration of this question we will assume (but do not decide) that plaintiffs in White had standing to raise the issue of reasonableness. However, it should be here noted that neither White nor the instant case were class actions and that the plaintiffs in each case were entirely different. At this point it should also be remembered that, generally, in order to have res judicata, there must be identity of the persons and parties to the action. Norwood v. Norwood, 353 Mo. 548 , 183 S.W.2d 118 . Since the plaintiffs are not the same in these cases res judicata would not ordinarily be applicable in the case at bar.
Defendant contends, however, that the rule requiring identity of parties is not strictly applicable in this case because of the equitable doctrine of “virtual representation.” Three cases are cited in support of that doctrine, i. e., Powell v. City of Joplin, supra, Drainage Dist. No. 1 Reformed of Stoddard County v. Matthews, 361 Mo. 286 , 234 S.W.2d 567 , and Hixson v. Kansas City, 361 Mo. 1211 , 239 S.W.2d 341 . In Matthews this court said: “‘In the absence of fraud or collusion a judgment for or against a municipal corpora *811 tion, county, town, school or irrigation district, or other local governmental agency or district, or a board or officers properly representing it, is binding and conclusive on all residents, citizens and taxpayers in respect to matters adjudicated which are of general or public interest such as questions relating to public property, contracts or other obligations. * * * ’ The rule just above stated is founded upon basic concepts of privity and virtual representation. The doctrine of virtual representation, well recognized in equity, is based upon considerations of necessity and paramount convenience and may be invoked to prevent a failure of justice. Brown v. Bibb, 356 Mo. 148 , 201 S.W.2d 370, 374 . The doctrine is applicable if * * * the interest of the represented and the representative are so identical that the inducement and desire to protect the common interest may be assumed to be the same in each and if there can be no adversity of interest between them.” 234 S.W.2d 1 . c. 573, 574.
We are in full accord with the doctrine of virtual representation. It would be unthinkable in our system of jurisprudence to hold that each taxpayer of a municipality could bring a suit to attack an annexation and that res judicata would not apply because there was not an identity of parties. Of necessity, absent fraud or bad faith, all residents and taxpayers must be bound by the result of litigation of a public nature carried on by one in similar circumstances and having a common interest. For example, had White been affirmed on the merits we would have had no difficulty in concluding that the instant plaintiffs were barred by res judicata from litigating the issues actually decided in that case since they had an identity of interest in those matters. However, as a practical matter,
the situation of the plaintiffs in this case is quite different from those in White when we consider the issue of reasonableness. The plaintiffs in this case live in the annexed areas and that fact, of itself, would give them greater knowledge of the facts concerning that issue than the plaintiffs in White would have had. Also, those living in the annexed areas are, for the first time, having their property subjected to taxation by the defendant and are particularly interested in the services the City will be able to furnish them in return. These are matters in which the plaintiffs in White had no personal interest. In view of that situation we do not think it would be just and equitable to hold that the virtual representation doctrine is fully applicable and that these plaintiffs are barred from litigating the issue of reasonableness of the annexation because of the White judgment. In other words, we find it difficult to conclude that the plaintiffs in the White case (all residents of the original city) were representing the interests of the plaintiffs in this case (all residents of the annexed areas) when they concluded that they would not attack the annexation on the issue of reasonableness in their suit. See and compare Hansberry v. Lee, 311 U.S. 32 , 61 S. Ct. 115 , 85 L.Ed. 22 , and Van Hafften v. Clayton, Mo.App., 259 S.W. 530 . See also 52 Am.Jur., § 38, p. 27, wherein it is said that “[p]ersons who were not parties to a former suit cannot be bound by a decree therein under the doctrine of virtual representation, unless it appears that the parties appearing as representatives therein had interests that were, in fact, similar to and consistent with those of the other members of the purported class.”
The motion for rehearing is overruled.