The Southeastern Reporter Volume 16 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1893 Excerpt: ... against him is an estoppel, and he cannot bring his crossaction for malpractice. But when the judgment Is by default, and no defense whatever has heen made, the majority of the cases would seem to hold that the question of malpractice or diligence and skill was not involved, and that the patient has not Impaired his right of action by neglecting or refusing to appear to the suit against him. Finding this contrariety of opinion in the courts of last resort, we naturally recur to the text writers to ascertain how the scale ought to he adjusted, rind what held to be the better opinion. But, instead of resolving our doubts, we find the conflict renewed with an energy almost acrimonious in its vigor. We find that Mr. Bigelow (1886) dissents from the New York decisions upon the ground that the right to sue for malpractice wan a cross demand, and the defendant might elect to litigate it in the first suit, but if be declined to do so it was reserved to him for future action. On page 175 of Bigelow on Estoppel, he thus comments upon the New York decisions: "Such an argument, however, like the view taken by the courts of New York, that the former judgment bus shown that the services or property, according to the case, were of value, while the second suit declares or may declare the same to be worthless, is only plausible; for a judgment on default is not equivalent, in principleoron authority, toa judgment on an issue fought out. Judgment on default is good for the primury purpose of a judgment for plaintiff. It gires him the right to have the sum adjudged collected. But it has not the full effect of a res judicata, because in reality it has been ex parte. There is the best authority forsaying that judgment by default does nut conclude defenses in confession an...