rehearing">

On Petition for Rehearing.

McNEIEL, J.

Our attention is called to several statements in the opinion wherein Commissioner STEWART stated in substance or to the effect the record disclosed that after the trial of the former case, to wit, No. 640, D. H. Stevens had transferred the note and mortgage to these plaintiffs. The statements are inaccurate, as the record does not so disclose; but the record does disclose that the instruments show upon their face a transfer which was not upon them at the time of the former trial. The statements in the opinion are not of sufficient importance to change the result. The statements might present a different question, if any objection had been made to the introduction of the note and mortgage by reason of the transfer being insufficient; but the record disclosed that the only objection to the introduction of the note and mortgage was that the same was objected to for the reason that the subject-matter had been once litigated and the same was res adjudi-cata. The note, as disclosed by the record in controversy in case No. 640, was payable to D. H. Stevens, and signed by John N. Marks and Martha Mariks, with no sufficient indorsement thereon to transfer the title. The note sued on in the present case is signed in the saíne manner, but in addition thereto the record discloses the following indorsement:

“Real Estate First Mortgage' Bond. $1,-900.00. John N. Marks and Wife to D. H. Stevens Interest on the first day of March and September Principal due March 1st, 1909. Negotiated by the Deming Investment Company, Oswego, Kansas.’’

“For value received, pay to Elizabeth Stevens, or order, without recourse.

his

“[Signed] D. H. X Stevens.

mark.

“Witness to mark of D H. Stevens, who cannot write, and at whose request and in whose presence I write his name.

“Attest: [Signed] D. M. Stevens.

“[Signed] Sarah P. Stevens.

“Velma S. Stevens.”

And in addition to the suit in the present case being a suit upon the note, which shows a complete and different indorsement than the one sued on in case No. 640. The plaintiff below asked judgment in case No. 640 against John N. Marks and Martha Marks, and set up the further allegation that James E. Whitehead claims some right, title, and interest in the premises, the extent and nature of which was unknown to plaintiff, but his interest was inferior to that of the plaintiff, and that he (Whitehead) be required to set up his interest in said premises. The answer of all of the defendants below was by way of general denial, and the further fact that another cause of action was pending between the same parties in case No 591, involved the same cause of action, and for that reason the court had no jurisdiction.

The petition, in the case at bar contained the allegation that on November 11, 1905, John N. Marks and Martin Marks sold the premises to James E. Whitehead, and that James E. Whitehead assumed and agreed to pay the note herein, and thereby became liable, and is now bound and liable to pay the amount thereon.

It can be readily seen that the two causes of action are not the same. The latter cause of action, in so far as John N. Marks and Martha Marks is concerned, is brought upon a note which upon its face shows a perfect indorsement in so far as James E. Whitehead is concerned; the former case only suggested that he claimed some interest in and to the premises. This is ^entirely a different and separate cause of action so far as James E. Whitehead is concerned. By reason of these facts, an objection on the ground that the matter had been once adjudicated could not be. sustained upon that theory.

The plaintiffs in error have cited authorities in their brief, and suggest, when a court dismissed an action in equity, that it is dismissed with prejudice, and cite a great number of authorities upon that theory; but this is an action triable by a jury; the foundation of this action was to recover a money judgment from John N. Marks and Martha Marks upon a note which showed upon its face a complete transfer, and as far as James E. Whitehead was concerned it was an action to recover a money judgment against James E: Whitehead upon his as *190 sumption in his deed to pay the mortgage debt due on the premises. The equity feature of the case, being- a foreclosure of the mortgage, was only incidentally involved. The trial court in case No. 640 did not render judgment in favor of the defendant. It was not a question of what the court had a right to do, but' only a question of what the court did do.

In that case the defendants asked for judgment; this the court refused, but stated the defendants were only entitled to have the case dismissed. Neither party appealed from this decision; if the defendant was entitled to judgment, when they asked the court to give them judgment, and the court refused, they would be bound by that proceeding, unless they appealed from the same.

From an examination of the pleadings and the record in the ease, and the fact that the objection made to the introduction of the note, mortgage, and deed in evidence only went to the fact that the same had been once adjudicated, when the petition íd both cases disclosed a different state of facts, and as far as James E. Whitehead was concerned asked for a different relief, and upon a different cause of action, the claim cannot be sustained.

We think the conclusion reached by the Commissioner is correct, and the petition for rehearing is therefore denied.

All the Justices concur.

Citation profile

How this case has been treated — in progress