¶1delivered the opinion of the court.'
¶2This is an action to revive, by cication, a judgment rendered before a justice of the peace against the defendant. Judgment of revivor was entered in favor of the plaintiff by the justice, and by the circuit court to which the cause had been removed by appeal.
¶3In reviewing the action of the trial court, it is unnecessary to consider the numerous points ably presented by counsel for the defendant contending for the proposi? tion, that the judgment in the original action was rendered against him upon insufficient service.
¶4Whatever merits there may be in these points, the defendant is estopped from urging them here, by the fact that he pleaded the judgment thus obtained in bar, by plea of former recovery, in a subsequent suit instituted against him on the original cause of action.
¶5He claims that he did not so plead it. The fact whether he did or did not so plead it, was an issue in the case, was submitted to the trial court upon sufficient evidence, and determined by the trial court against him. This fact conclusively appears by the instructions given, and necessarily concludes him upon this appeal. Bigelow, Estop. 562, 571, 608, 604; Ferguson v. Landram, 1 Bush. 548; 5 Bush. 230; Railroad Co. v. Chicago, 87 Ill. 317; Hines v. Ament, 43 Mo. 298; Henslee v. Cannefax, 49 Mo. 295 ; Slagel v. Murdock, 65 Mo. 522.
¶6The judgment is affirmed.