The plaintiff in error, Virgia V. Barton, brought her action on the case in the circuit court of Sangamon county against Dr. George E. Southwick, the defendant in error, charging him with malpractice, and recovered a judgment for $2300. The Appellate Court reversed the judgment without remanding the cause, on the ground that the action was barred by a judgment before a justice of the peace in favor of defendant in error, Dr. Southwick, in an action brought by him against plaintiff in error and her husband for the services rendered plaintiff in error. The merits of the case were not considered by the Appellate Court. The case is brought to this court for review by writ of certiorari.
After this suit had been commenced in the circuit court and the declaration had been filed herein, defendant in error sued plaintiff in error and her husband, jointly, before a justice of the peace to recover for his services and recovered judgment therefor, and the only question argued *519and presented for our determination is whether the judgment thus secured before the justice of the peace is a bar to a recovery in this action.
It will not be necessary to make an extended statement of the facts. In substance the declaration charged, and the theory upon which the plaintiff in error seeks to recover is, that defendant was negligent and guilty of malpractice in that having been called as a physician to attend and prescribe for her while she was suffering from some disorder of the generatiye organs, which had resulted in what is commonly known as “flooding,” he improperly and wrongfully diagnosed her case as one of pregnancy, informed her she was about to have a miscarriage, and proceeded, by the use of various instruments, to attempt to remove the foetus supposed to be present; that plaintiff in error was not pregnant, and defendant in error was so careless and negligent in the use of such instruments as to lacerate the uterus, thereby compelling plaintiff in error to submit to a major surgical operation and suffer the removal of her uterus. The defense in the trial court on the facts was, that defendant in error employed proper treatment to stop' the flooding, that he did not diagnose the case as one of pregnancy, and that he did not insert any instrument into the uterus or attempt by the use of instruments to- remove a foetus.
On the trial the following stipulation was entered into and admitted in evidence: “It is stipulated between the parties that the defendant in this suit now on trial, Dr. George Southwick, brought suit in December of 1910, before justice of the peace Knotts, at Chatham, Illinois, to recover compensation for services, including the visits on which it is claimed in the case on trial that the defendant herein was guilty of negligence;- that Virgia Barton was a defendant in that suit brought by Dr. Southwick and is the same Virgia Barton who is the plaintiff in this case; that counsel appeared on the hearing in the trial of the case before the said justice of the peace representing the *520defendants; that the defendant in this case and plaintiff in that case, Dr. Southwick, testified on that trial to the rendition of the services upon which this action of negligence is based; that counsel for defendants in that case inquired of Dr. Southwick on that trial concerning the duration of his visits, what instruments he used and what use he made of them, and that judgment for compensation for the plaintiff for said services was given against the defendants, Wesley Barton and Virgia Barton, as claimed by the plaintiff in that suit, and that said suit by Dr. Southwick was commenced before the justice of the peace after prcecipe and declaration had been filed in the suit on trial.”
Guy Wesley Barton, the husband of plaintiff in error, was a witness in her behalf on the trial of the case, and in his direct examination testified that defendant in error had sued him for his services. His cross-examination on this subject is abstracted as follows: “Southwick’s suit for fees was brought against wife and myself. I was in Chatham, present at the trial, and Mr. Wines was there for us. He asked Southwick, on the trial, what instruments he used and how he used them. Mr. Wines told the squire I didn’t deny I owed the doctor the bill.”
The New York courts have held that a judgment against a patient, before a justice of the peace, in favor of a physician for his services is a bar to the prosecution of a suit for malpractice against the physician by the patient, even though no defense of malpractice or any attempt to set off or recoup damages on that account was made at the trial. This was held in Bellinger v. Craigue, 31 Barb. 534, and Gates v. Preston, 41 N. Y. 113, and has been followed by the courts of that State in later cases. The courts of some other States have followed the New York cases, but the majority of other courts have only partially followed the New York courts. Bigelow on Estoppel, VanEleet on Former Adjudication and Black on Judgments repudiate the New York rule, while Herman 'on Estoppel supports it. A *521number of both lines of authorities will be found in the decisions cited and reviewed by the Supreme Court of Tennessee in Sale v. Eichberg, 52 L. R. A. 894. Most, if not all, the reported cases to which our attention has been called follow the New York decisions to the extent of holding that a judgment before a justice of the peace is a bar to the prosecution of a malpractice suit only when the defendant in the suit before the justice of the peace appears at the trial and interposes the defense of malpractice. This court held in Howell v. Goodrich, 69 Ill. 556, that a judgment in favor of a doctor before a justice of the peace, where the defendant appeared and interposed the defense of malpractice, was a bar to the prosecution of a suit against the doctor for malpractice, and it would seem from the fact that a justice of the peace in this State has no jurisdiction to entertain an action for malpractice, a party having pending or contemplating bringing such a suit in a court having jurisdiction to try and determine it could not be compelled to defend the suit by the physician before the justice of the peace or be barred from prosecuting his suit for malpractice. The inconvenience, if not injustice, of requiring the party to defend against a judgment in the justice’s court was referred to in Ressequie v. Byers, 52 Wis. 650, (38 Am. Rep. 775,) where the court said: “If the plaintiff were compelled to make his defense in the justice’s court that the professional services were of no value and that he had been injured by the defendant’s negligence, then it would follow that he must either split up his demand so that there might be two suits instead of one upon it, or content himself with merely defeating the claim for services or limit his damages to $200,—the extent of the jurisdiction of the justice. We are not inclined to adopt a rule which would lead to any such inconvenient consequences.”
Defendant in error contends that there was a defense made before the justice of the peace in the suit brought by *522him to recover for his services. We do not think the stipulation and testimony relied upon support this contention. Plaintiff in error did not appear at the trial, but her husband, who was sued jointly with her, was present and was accompanied by counsel. Defendant in error, as shown by the stipulation, testified in support of his claim, and counsel who was present with the husband of plaintiff in error inquired of defendant in error what instruments he used and what use he made of them. The husband of plaintiff in error testified on the trial of this case that he, with counsel, was present before the justice of the peace; that counsel asked defendant in error the questions stated in the stipulation, and counsel said to the justice of the peace plaintiff in error’s husband did not deny owing the doctor the bill. Clearly, this does not show that any defense was interposed or any attempt made to prevent a judgment being rendered. The question might well have been, and to all appearances was, asked by counsel to acquire information that might be of advantage to him in the prosecution of the malpractice suit. The mere presence of the husband of plaintiff in error and counsel before the justice of the peace without any attempt to interpose any defense whatever was not a bar to the prosecution of the malpractice suit by plaintiff in error, and Howell v. Goodrich, supra, is not applicable.
Inasmuch as the Appellate Court did not consider the merits of the case the judgment of that court will be reversed and the cause remanded to it, with directions to consider the case on its merits.
Reversed and remanded, zmth directions.
Mr. Justice Cooke, dissenting.