Vukelic v. Upper Third Street Savings & Loan Ass'n

The case-was decided upon a demurrer to defendants’ answer which set up a previous judgment in foreclosure as res judicata. The plaintiff demurred tO' the portion of the answer setting up such defense. The court overruled the demurrer and entered judgment dismissing the complaint.

The appellant’s claim is that the matters set up in his complaint were pleadable in the foreclosure action only by counterclaim or set-off; that they were not SO' set up and may now be pleaded as an independent cause of action. If the matters were pleadable only as a counterclaim the appellant’s position *570is correct.…