The judgment in the prior case that the rents under the renewed lease were to be applied as plaintiffs contend settles the rights of the parties to the application of the rents and is res judicata. Bolsta v. Bremer, 212 Minn. 269,3 N.W.2d 430; Ferch v. Hiller, 210 Minn. 3, 297 N.W. 102.
The suggestion has been made on appeal that no judgment was entered in the prior action and that consequently there was no adjudication. The argument is that the principle of resjudicata is inapplicable where judgment has not been entered, even though findings have been made. In support of the argument defendant cites State v. Brooks-Scanlon Lbr. Co. 137 Minn. 71,162 N.W. 1054. The judgment in the prior action has not been returned as part of the record. The pleadings, however, affirmatively show that a judgment was entered. Plaintiffs allege the existence of the judgment, and defendant in effect admits its existence but denies that it is res judicata. (Counsel who appears here for defendant did not represent him below.) In that situation the suggestion cannot be considered. The case was tried below upon the theory that there was a judgment. Denial of the existence of the judgment by
defendant on appeal after in effect admitting its existence in his answer involves a shifting of position which is not permissible. A party will not be permitted to shift his position on appeal.
Affirmed.