This is the common-law rule in Connecticut. See, e.g., Salem Park, Inc. v. Salem , 149 Conn. 141, 144, 176 A.2d 571 (1961) (prior judgment retains preclusive effect during pendency of appeal); Rogers v. Hendrick , 85 Conn. 271, 276, 82 A. 590 (1912) ("[a] manifestly erroneous" judgment in prior action retained preclusive effect "until set aside by writ of error or appeal, or other proper proceedings"). This is the general rule.
Section 95 of the Practice Book requires a responsive pleading in the form of a demurrer or answer to a plea in abatement. When the demurrer was overruled, the plaintiff had the right to plead over. Practice Book 113; Rogers v. Hendrick, 85 Conn. 271, 82 A. 590. The record does not indicate that a responsive pleading was ever filed after the demurrer was overruled, and there is no claim that such a pleading to the plea in abatement was ever made. The record indicates that the demurrer was overruled on January 14, 1974.
The judgment in Cooper continued in force so long as it was not set aside on appeal, writ of error or other proper proceeding. Rogers v. Hendrick, 85 Conn. 271, 276, 82 A. 590; Bank of North America v. Wheeler, 28 Conn. 433, 442; 1 Am.Jur. 48, 44. The fact that the judgment was appealed from makes no difference, because a party cannot litigate in a second action matters already concluded in a prior one. If the judgment appealed from is sustained, there is an end to the matter.
That the writ is not a proceeding independent of the original action in any broad sense is apparent when we consider that the effect of a reversal is to destroy the judgment in that action, to restore the parties to the position in which they were before the judgment was rendered, and to permit the re-entry of the case in the trial court for disposition as though no judgment had been entered. Allen v. Adams, 17 Conn. 67; Vila v. Weston, 33 Conn. 42, 50; Woodruff v. Bacon, 35 Conn. 97, 102; Brennan v. Berlin Iron Bridge Co., 73 Conn. 412, 415, 47 A. 668, 75 Conn. 393, 396, 53 A. 779; Rogers v. Hendrick, 85 Conn. 271, 275, 82 A. 590. When the State brought the original action it waived its immunity as regards this writ of error just as much as it would have waived it had the plaintiff in error appealed.
The question now before the court is, however, foreclosed by the decision in the La France Case, holding that the prayer of the relator "cannot be granted for the obvious reason, as no specific declaration, either to retry or dismiss, was contained in the mandate of this court, the district court was vested with a legal discretion to take such action, not inconsistent with the order of the court, as seemed wise and proper under the circumstances," the opinion further holding that an unqualified reversal entitled plaintiff to another trial, citing California cases. That a reversal in general terms is not a final decision disposing of the case on the merits is held by the great weight of authority. ( Gazos Creek Mill L. Co. v. Coburn, 8 Cal.App. 150, 96 P. 359; Smith v. Schlink, 44 Colo. 200, 99 P. 566; Wilcox v. Phillips, 260 Mo. 664, 169 S.W. 55; Sloan v. Philadelphia R. Co., 235 Pa. 155, 83 A. 604; Rogers v. Hendrick, 85 Conn. 271, 82 A. 590. See Re Pusey's Estate, 177 Cal. 367, 170 P. 846; Smith Sand Gravel Co. v. Corbin, 102 Wn. 306, 173 P. 16; Riley v. Loma Vista Ranch Co., 5 Cal.App. 25, 89 P. 849.) Where plaintiff shows affirmatively and conclusively that he has no case, the court on appeal may finally dispose of the case, but where defects of plaintiff's case consist in omission to prove allegations which may or may not be susceptible of proof, no general rule governs the court in determining whether the action should be dismissed. ( State ex rel. La France Copper Co., supra.
” (Citations omitted; internal quotation marks omitted.) Rogers v. Hendrick, 85 Conn. 271, 276, 82 A. 590 (1912). “Unless, and until, it is corrected, modified, reversed, annulled, vacated, or set aside on appeal or in some other timely and appropriate proceeding, a final judgment on the merits which has been rendered by a court having jurisdiction of the parties and the subject matter, and which is not void, is conclusive as to matters put in issue and actually determined in the suit, when they come into controversy again in subsequent litigation between the same parties or their privies, even though it is irregular or erroneous.