Res adjudicata is a matter of affirmative defense. It was not a proper ground for the defendant A Co.'s plea to the jurisdiction and in abatement. Whatever efficacy the other grounds of the defendant's plea might have if the first count, alleging that the plaintiff was unlawfully suspended and discharged from his work, were the only one, they could not serve the purpose for which they were set forth because of the third count, alleging conspiracy.
DALY, J.
The complaint consists of three counts. In the first count it is alleged that on June 28, 1948, the plaintiff was a member of the defendant union and that, on that date and since, the union had a collective bargaining agreement with the defendant The American Brass Company, referred to as the company. It is also alleged in the first count that on November 5, 1948, while he was still a member of the collective bargaining unit, he was unlawfully suspended and discharged from his work without due and just cause.
In the second count it is alleged that the plaintiff has endeavored, through the officers and agents of the union, to have the right of his continued employment and re-employment determined by ultimate arbitration, but that the union has wrongfully refused, "for its own ulterior purpose," to request the same of the company.
In the third count a conspiracy between the defendant union and the defendant company "to oust the plaintiff from his employment and/or otherwise preclude his employment or re-employment by the Company in said bargaining unit" is alleged.
The defendant company has filed a plea to the jurisdiction and in abatement. One of the grounds alleged is res adjudicata. As stated in the plaintiff's brief, this is a matter of affirmative defense. Whatever efficacy the other grounds of the plea might have if the first count were the only one, they cannot serve the purpose for which they are set forth in the plea because of the third count, alleging conspiracy.