Barrett v. Marschak

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 1734*—what questions res judicata on second appeal. When a cause is litigated and that litigation prosecuted to a court of appeals and passed upon, all questions that were open to consideration and could have been presented, relating to the same subject-matters, are res judicata, whether presented or not.</p> <p>2. Appeal and erbob, § 7*—nature of writ of error. A writ of error is the beginning of a new suit.</p> <p>3. Pleading, § 295*—what may not "be set up in plea puis darrein continuance after reversal and remandment of case on writ of error. The mere fact that a writ of error is a new suit does not warrant the setting up in a plea puis darrein continuance on reversal and remandment of the ease the defense that plaintiff was not the administratrix of the estate for which she was suing, where such defense was available for a number of years before in prior suits.</p> <p>4. Appeal and error, § 1802*—what is effect of reversal and remandment on writ of error and proceedings. Where the judgment of the trial court on writ of error is reversed and remanded, the proceedings and suit stand precisely as if no writ of error had been issued.</p> <p>5. Pleading, § 201*—what is mere conclusion of pleader in plea puis darrein continuance. The recital in a plea of puis darrein continuance that the plaintiff was not the administratrix of the estate for which she was suing- is a mere conclusion of the pleader and is not a well-presented fact that is admitted by demurrer.</p> <p>6. Pleading, § 454*—when defense in plea of abatement waived. The defense set up in a plea of abatement that plaintiff is not the administratrix of the estate for which she is suing is waived by a plea to the merits.</p>