Davies & Davies v. Patterson
208 S.W. 592
Ark.
1919
Check Treatment
HART, J.,

(after stating the facts). It appears from the facts stated in the record that Patterson suffered .a fire loss and failed to effect a settlement with the insuranee companies in which, his property was insured. He employed Davies & Davies as his attorneys in the matter and entered into a written contract with them. Patterson instituted proceedings for a summary judgment against Davies & Davies to recover the money collected by them from the insurance companies for him. Because they filed an answer supported by an affidavit setting up a bona fide defense to the proceeding, the Supreme Court reversed the action of the circuit court, in favor of Patterson and remanded the case for further proceedings according to the course of the common law. Upon the remand of the case it proceeded in the circuit court as a case brought and prosecuted according to the course of the common law. Before the case was heard in the circuit court Patterson instituted another proceeding against the insurance company to recover an amount alleged to be due him. Davies & Davies were made parties defendant to the action because the insurance company had already paid them the money for Patterson. In this case there was a verdict and judgment in favor of Patterson which was affirmed by the Supreme Court in an opinion delivered June 24,1918. See Davies S Davies v. Patterson, 135 Ark. 22. Subsequent to the decision in this case the circuit court held in favor of Patterson in the present case upon the ground that the matters embraced in the present suit were concluded in the case just referred to. The decision of the circuit court was correct. The same facts and the same issues were raised in both suits and the circuit court was right in holding that the judgment of this court in Davies & Davies v. Patterson, supra, is conclusive on the matters at issue in the present case. Cargill v. Matthews, 137 Ark. 75. But it is objected by counsel for appellants that that case was commenced and decided after the institution of the present action. That does not make any difference. The fact that the present suit was commenced first did not prevent the judgment in that case from being conclusive of the issues in the case at bar. Church v. Gallic, 76 Ark. 423, and Sallee, Treas. v. The Bank of Corning, 134 Ark. 109, 203 S. W. 276. The circuit court correctly held that Davies & Davies should take nothing by reason of their counter-claim. The court sustained Patterson’s contention as to the meaning of the contract between him and Davies & Davies and there is nothing whatever in the record tending to show that Patterson acted maliciously in the proceeding against Davies & Davies.

Again it is insisted that the court erred in failing to continue the case because the junior member of the firm of Davies & Davies was in the army. The court did not abuse its discretion in refusing to continue the case for the reason that the matters embraced in this litigation depended upon the construction of the contract between the parties and the construction to be placed upon the contract was settled by the decision in the case of Davies & Davis v. Patterson, supra, in the opinion delivered by this court on June 24, 1918.

It follows that the judgment must be affirmed.