Arjen Lubach Magnus 34.epub
have been filed with the court in the prior action.” Id. at 131.
A more thorough consideration of the rule is found in the more recent annotation in 142 A.L.R. 885, 889. The annotation lists twenty states that have adopted the doctrine of res judicata, without further comment. Cases from only six of these states are set forth. All of these states adopted the rule as set out in the Restatement of Judgments, § 61, and all of them hold that:
The general rule is that a judgment for the defendant, which rests on the merits, is not conclusive in a subsequent action as to issues determined therein, where the plaintiff seeks to avoid the effect of the judgment by the additional claim that his present action is not based on the same cause of action as the one which was previously determined.
142 A.L.R. 885 at 890.
The majority view of the states appears to be that an action is precluded by res judicata only if the prior judgment was on the merits. Thus, the defense of res judicata should be interposed only when the prior litigation was resolved on the merits.
Although the rule of res judicata adopted in this state might require a closer relationship between the parties than that found in a class action, it does not allow the subsequent action to proceed to trial on the basis of any new or different claim. The majority rule appears to be sound. If the class action is not an exception to the rule of res judicata, there is no need to expand the exception to other claims. However, I cannot find any support for such an expansion of the exception to claims that were not litigated in the prior action. The majority has added a broad exception to the rule of res judicata to allow the first claim to be litigated without *1302 the requirement that the second claim be in the same class as the first claim.
The procedural history of this case indicates that the trial court was given little guidance about the issues in this case. The plaintiffs’ motion for class certification was filed by an attorney who had been retained by the plaintiffs but who had not participated in any discovery. The trial court never set a hearing on the motion for class certification. The majority, apparently by reference to the “matters of record,” suggests that the court denied the motion for class certification. While no formal order denying the motion for class certification was ever entered, a docket entry states that the trial court
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