I. The controversy involves less than $100, and the trial judge has certified to us certain questions of law which he states it is desirable shall be determined by this court. They are as follows:
'1. “ Where, in an action on a promissory note the defendant in his answer alleges, as a defense, that the note was fraudulently altered after delivery, without the knowledge or consent of the maker, and a general verdict and judgment are rendered for defendant in that case, will this judgment and adjudication be a bar to an action for the consideration for which the note found void whs made?
“ 2. When, in an action on a promissory note, judgment is rendered for defendant in consequence of a material alteration of the note, and an action is commenced against the maker of the note for the consideration for which the note was given, and in this action the defendant alleges as a defense that the note that was given for the claim was fraudulently altered, is the burden of proof on plaintiff to show that the alteration was made in good faith, or upon defendant to show that the alteration was fraudulent?
“ 3. Where, in defense to an action on a promissory note, defendant alleges in his answer that the note was fraudulently
“4. If in a suit on a promissory note against the maker the same is adjudged void on the ground of a'material alteration, can the holder of said note maintain a suit on the original consideration of the note, without returning, or offering to return, said note?
“ 5. "When, in an action on a promissory note, the answer alleges that the note has been altered after its execution in a material matter1, is the further allegation that said alteration was fraudulently made a necessary or material alteration ?
“ Robert G. Reineger, Jmdge.
“Dated April 14, A. D. 1882.”
The second question above set out we do not feel called upon to determine. The verdict and judgment were for the plaintiff, and the court instructed the jury that the burden was on the plaintiff to show that the note was not fraudulently altered. "Whether this was right or wrong, it cannot affect the case. The defendant cannot complain because the instruction was favorable to him, and if we were to hold that the burden o^f proof was upon him, it would not reverse the case. The statute does not contemplate that abstract questions of law shall be certified to this court. Only such questions as are decisive of the case should be certified.
II. The first, third and fifth certified questions involve the real point in controversy in the case, and they may be considered together. They involve but the one question, which is, whether or not the cause of action upon the consideration for which the note was given, was adjudicated in the action upon the note.
This court has adopted the rule that any material alteration of a promissory note by the holder thereof avoids the note, and no action can be maintained thereon, even though the alteration be made innocently, and without any fraudu
It is claimed by counsel, for the defendant that, because the answer in the suit upon the note charged that the alteration was fraudulently made, no recovery can be had in this action, for the reason that the issue of fraud was made and determined in the former action; and this is the controlling question in the case.
The rule that what has once been judicially determined shall not again be made the subject of judicial controversy, or fhat a person shall not be twice vexed for the same cause, is not of easy application in practice. The difficulty lies chiefly in determining whether or not the matter in dispute was decided in the former action. As has been seen, it was not a material question in the former action whether or not the note was fraudulently altered. It was not necessary, in order to sustain the plea of alteration, that it should have been shown that there was any fraudulent purpose in malting the alteration. Indeed, the defendant could, and we must presume he did, stand upon his legal right, and claim his discharge from the mere fact of alteration, and we must further presume that the court instructed the jury that the question of fraud was not material. In this view of the case, the character of the action in regard to fraud was neither put in issue nor was it determined in the former case. If the court instructed the jury that it was necessary to find that the al
The record in the former suit, as we have seen, did not necessarily require the question of fraud to be determined, and it could not have been determined without the trial of an immaterial issue. Our conclusion is that the question now under consideration should be answered in the negative, and as the instructions of the court to the jury are in accord with our views herein expressed, we find no error therein.
III. As to the fourth question certified, we think it should be answered in the affirmative. The note had been adjudged void. The adjudication was a complete protection to the defendant against any attempt to enforce the note. Besides, it is questionable whether, if such defense had been available, it should not have been set up by way of answer, demurrer or motion, in arrest of judgment.
Affirmed.