Before us is an appeal from an order dismissing a complaint on the ground of res judicata. The district court’s jurisdiction was based on Title 48 U.S.C.A. § 1424 . This Court has jurisdiction under Title 28 U.S.C.A. §§ 1291 and 1294.

Since the order of the district court dismissing the complaint was based on the ground of res judicata, it is necessary to set forth portions of the complaint in the instant case and of the record in the prior case which was held by the district court to have settled and adjudicated all of the issues raised in the complaint in the instant case.

When the district court entered its order dismissing the instant action the only record before the court consisted of appellants’ complaint and appellees’ motion to dismiss. The record in the prior action — Civil Case No. 49-55 of the District Court of the Territory of Guam —was not before the court, nor was the record of such prior case certified as a part of the record on this appeal as originally filed, but was brought to this Court under a supplemental record on motion of the appellees, pursuant to the direction of this Court and by order of the district court.

Such supplemental record discloses that the plaintiff in the prior action was Guam Savings and Loan Association, one of the defendants in the present action and an appellee on this appeal. The defendants were Central Building, Inc., a defendant in the present action and an appellee on this appeal, Guam Investment Company, Inc., the plaintiff in the present action and one of the appellants on this appeal, Kenneth Dang, a plaintiff in the present action and one of the appellants on this appeal, and several other named and fictitious defendants who are not concerned in the present action or in this appeal.

The complaint in the prior action was denominated “Amended Complaint for Foreclosure of Mortgage.” The complaint alleged the execution and delivery by Central Building, Inc. of a note and mortgage to the plaintiff to evidence and secure repayment to the plaintiff of the sum of $50,000, and to secure performance of the terms and conditions of the note and mortgage. The complaint also alleged defaults by Central Building, Inc. of terms and conditions contained in the mortgage and note. It further alleged that Guam Investment Company, Inc. and Kenneth Dang [plaintiffs in the present action and appellants on this appeal] have or claim to have some interest or claim upon the premises described in the mortgage, which interests or claims are subsequent to and subject to the lien of plaintiffs’ mortgage. The prayer of the complaint was for a judgment against Central Building, Inc. for amounts found due and unpaid, for foreclosure of the mortgage and sale of the premises, that persons claiming an interest in the premises be forever barred of all claims therein, and other relief usual in a foreclosure suit. The decree of foreclosure and order of sale entered in the proceedings followed generally the prayer of the complaint. Kenneth Dang sought unsuccessfully to have set aside the Marshal’s sale of the premises. The Marshal’s sale of the premises was approved and confirmed by the district court.

The complaint in the instant case [omitting formal matters] is as follows:

The plaintiffs’ demand for judgment is-in the following form:

Appellee filed no answer to the complaint, but instead filed motions to dismiss the complaint on the ground of res judicata based on the premise that the prior proceedings in civil case No. 49-55 resulted in a judgment which finally settled and adjudicated all issues which appellants seek to litigate in the present action as to the appellees.

In the order of dismissal of the complaint the district court stated that it took judicial notice of record in Civil No. 49-55, and that all issues raised in the present case were finally settled and adjudicated in said case and that plaintiffs [appellants] are therefore forever barred and precluded from raising said issues in the present or in any further action. The above mentioned order of dismissal was entered notwithstanding the fact that the appellees filed no responsive pleading to the complaint of appellants, nor was the record in the prior case, Civil No. 49-55, offered or received in evidence.

Rule 8, Federal Rules of Civil Procedure, 28 U.S.C.A., which is entitled “General Rules of Pleading”, provides in (c) thereof in material parts as follows: “(c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively * * *, res judicata, * * The general rule applicable to this situation is well stated in Lowe etc., et al. v. McDonald et al., 9 Cir., 1955, 221 F.2d 228 , 230, 15 Alaska 510 , as follows:

As stated in Paridy v. Caterpillar Tractor Co., 7 Cir., 1931, 48 F.2d 166 , at page 169:

It is appellees’ position that their motion to dismiss on the ground of res judicata should be treated as a motion for summary judgment under Rule 56(c), Federal Rules of Civil Procedure, which provides in part that “The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

It is to be noted, however, that Rule 12(b) of the Federal Rules of Civil Procedure in substance provides that a defense to a claim for relief in any pleading shall be asserted in the responsive pleading thereto, if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join an indispensable party; and that if, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present ail material made pertinent to such motion by Rule 56. It is to be noted that the defense of “res judicata” is not among the defenses listed in said rule.

While we recognize that there are exceptions to the general rule that the defense of res judicata must be affirmatively pleaded, we are unable to see how some of the uncontroverted allegations of fact contained in the complaint could be disposed of on the ground that there existed no genuine issue as to a material fact. In this connection we note that there are allegations in the complaint concerning matters which occurred subsequent to the judgment of foreclosure in the prior case, as well as charges of fraud and conspiracy, and allegations charging conversion of chattels. It appears to us that before an action may be summarily dismissed on the ground of res judicata the ends of justice require as a minimum that the defense of res judicata appear from the face of the complaint or that the record of the prior case be received in evidence. In the instant case, such defense does not appear on plaintiffs’ complaint, nor was the record in the prior case received in evidence.

With respect to the allegations of fraud appearing in the complaint, appellees contend that the district court correctly refused to pass upon them because of appellants’ failure to state with particularity the circumstances constituting the fraud. We call attention to the provisions of Rule 12(e) of the Federal Rules of Civil Procedure, which grant to a party the right to move for a more definite statement and if the motion is granted the other party is automatically given the right to file a more definite pleading. The summary dismissal of the action by the trial court precluded appellants from pursuing this course.

Attention is also directed to the provisions of Rule 15(a) of the Federal Rules of Civil Procedure, which in substance provides that a party may amend his pleadings once as a matter of course at any time before a responsive pleading is served.

Since we have concluded that the order appealed from should be reversed, we do no deem it proper to pass upon many of the issues discussed in the briefs which the trial court may be required to pass upon on remand of the case.

The order appealed from is reversed and the matter is remanded to the district court for trial on the merits after appellees shall have had an opportunity to file their answer and the appellants to amend their complaint, if they be so advised.