The plaintiff contends the plea of res judicata shows on its face that it is not a defense to the matters and things alleged in his complaint for that it fails to aver that he was served; with summons, participated in the action, appeared or authorized any attorney to appear for him, had knowledge of the prior suit, or authorized anyone to consent to the judgment.
At this stage of the cause we are concerned with allegations only-— not with proof. For the purposes of the motion to strike, we must accept as true the allegations of the further defense. Trust Co. v. Currin, 244, N.C. 102, 92 S.E. 2d 658. If the plaintiff’s objections are well founded he will have opportunity to present them when the defendants- offer evidence to -support their plea. Or if, as he suggests, the record in the general county court does not speak the truth as to him, his remedy is pointed out in Stone v. Coach Co., 238 N.C. 662, 78 S.E. 2d 605.
The plaintiff -also contends the order striking the further defense should be sustained on the authority of Mercer v. Hilliard, 249 N.C. 725, 107 S.E. 2d 554, and Penn Dixie Lines v. Grannick, 238 N.C. 552, 78 S.E. 2d 410. In the Penn Dixie Dines Case the defendant interposed the further defense that the plaintiff had participated with the defendant in -an extrajudicial -settlement of the claims by third parties growing out of the same accident. This Court -said: “The allegations relating to extrajudicial settlements of the plaintiff and the defendant . . . have no proper place in the answer . . . Logic would ignore the facts of life if it accepted the plaintiff’s participation in the extra*592judicial settlement ... as an implied admission of legal culpability on its part . . .”
In the Mercer case the defendant interposed the further defense that a Mrs. Strickland had instituted; an action against both Mercer and Hilliard, alleging she -had suffered property damage in the collision which resulted from .the negligence of both. The cause was settled •by payment of $165 to Mrs. Strickland. No pleadings were ever filed on behalf of either defendant. The superior court, on Mrs. Strickland’s application, entered judgment of nonsuit, taxing her with the costs. In passing on the order to strike the further defense in the Mercer case, this Court said: “The facts alleged by defendants do not constitute either an adjudication or an acknowledgment that negligence on the part of Mrs. Mercer proximately caused the collision between the Mercer and the Hilliard cars.” In Penn Dixie Lines, a court action was never instituted. In M-ercer, action was instituted but judgment of nonsuit was taken by the plaintiff. In neither case was there an adjudication on the issues of negligence.
The Latin phrase, res' judicata, comes to us from the civil law. It means the thing has 'been adjudicated; it has been determined by judgment; it has been settled by the court, etc. There may be an estoppel by conduct, but the plea of res judicata must necessarily be founded on an adjudication ■ — • a judgment on the merits. See Hayes v. Ricard, decided this day.
The further defense in the case now before us is bottomed on these allegations: The plaintiff, Miss Gibbs, was injured by the joint and concurrent negligence of all the defendants, including the present plaintiff. A joint answer was filed by all defendants, denying negligence. By consent the court adjudged that the defendants pay to the plaintiff $1,050 “in full and final settlement of all matters involved in this action.” The defendants in the instant action have pleaded that judgment as a bar to the right of the plaintiff to recover. In a similar factual situation, this Court said: “Unquestionably the judgment pleaded, as between the parties, would constitute res judicata and be regarded a-s conclusive as to all rights, questions and facts in issue in that action. . . . This would be true whether the judgment was by consent of -the parties or based on the findings and verdict of a jury. . . . 'There is no doubt that a final judgment or decree necessarily affirming the existence of a fact is conclusive upon the parties or their privies, whenever the existence of that fact is again in issue between -them ... in the same or any other court.’ ” Lumberton Coach Co. v. Stone, 235 N.C. 619, 70 S.E. 2d 673; Hayes v. Ricard, supra; Coach Co. v. Burrell, 241 N.C. 432, 85 S.E. 2d 688.
The holding in the Lumberton Coach Company case is founded on *593the premise that a judgment for the plaintiff against two or more defendants charged with j oint and concurrent negligence establishes their negligence and may be pleaded in bar by one defendant against the other in a subsequent action between them based on the negligent acts at issue in .the first cause. See also, Stone v. Carolina Coach Co., 238 N.C. 662, 78 S.E. 2d 605. The decisions in Penn Dixie Lines v. Grannick, supra, and Mercer v. Hilliard, supra, are not in conflict for the reason that in neither ease was there an adjudication on issues of negligence.
The case of Stanley v. Parker, 207 N.C. 159, 176 S.E. 279, is readily distinguishable. In that case the Court said: “A judgment against several defendants does not as a rule determine their rights among themselves, unless their rights have been drawn in issue and determined in the action in which the judgment was rendered.” That action was in contract. It involved an accounting -between the parties as to the amount each should pay on a judgment entered against both in a prior action.
In holding the plea in bar good in a tort case, however, our Court has proceeded on the theory that a judgment against all defendants who are jointly charged with -actionable negligence necessarily establishes the negligence of all. Consequently neither can recover from the other in a subsequent action involving the same negligent acts. When both parties are -at fault, neither -can recover from the other.
It must be conceded, however, there is authority in conflict with the rule .as stated in Lumberton Coach Co. v. Stone, supra, etc. The conflicting authorities hold that a judgment for the -plaintiff in an •action against two or more defendants is not res judicata -as- to the defendants’ rights and liabilities among themselves, unless those rights and liabilities have been expressly put in issue in the prior action by cross or adversary pleadings. 101 A.L.R. 104; 142 A.L.R. 727; 152 A.L.R. 1066; 38A Am. Jur., “Judgments,” § 41.
However, adhering to our rule, we conclude the -trial court committed error in striking the further defense. It should be restored to the defendants’ answer.