76 Ind. App. 496 | Ind. Ct. App. | 1921
This is the second appeal of this case, the opinion in the first appeal appearing in 65 Ind. App. 586, 115 N. E. 433. After the case was remanded, it was again submitted to the court for trial, which again resulted in a finding and j udgment for appellees. There was a motion for a new trial, which motion, based on the decision of the court being contrary to law, was overruled. This is the only error relied upon.
cover the issue of suretyship, and therefore the rule of res adjudícala does not apply, for there was no adjudication of the issue .of suretyship. To sustain this holding, we cite Zimmerman v. Gaumer (1899), 152 Ind. 552, 53 N. E. 829, quoting from p. 564, as follows: “While the jury found that the appellee Robert G. Pasley was surety only on the note and mortgage upon which the Funk judgment and decree were recovered, and the other persons against whom said judgment and decree were rendered were principals, yet said relation was not shown by that judgment. * * * said judgment was joint against said Pasley and the other judgment defendants. Therefore, when appellee Robert G. Pasley took the assignment of the Funk judgment and decree to himself, he could not, * * * take an execution or a copy of the decree thereon, until there had been a final adjudication that he was the surety -of the other judgment defendants in said judgment, and an order that execution issue thereon.” See also, Yelton v. Slinkard (1882), 85 Ind. 190; Oglebay v. Todd (1905), 166 Ind. 250, 76 N. E. 238; 7 Ency. of Evidence
Appellant has cited a long list of authorities sustaining the proposition that it is the judgment itself which constitutes the adjudication, that estoppel by adjudication resides in the judgment itself, and that it is not the verdict of the jury that concludes the parties, but the judgment rendered upon such verdict. To this contention we most readily agree, but an examination of the judgment here involved fails to show any determination of rights between the judgment defendants. It is simply a judgment in favor of the plaintiff on his complaint against all of the defendants, nothing more.
It is contended that the decision in the first appeal becomes the law of the case thereafter, and therefore that the court in that decision having held that appellees’ rights had been once tried and determined, and that they cannot be litigated again, such holding is now binding upon this court, right or wrong. We are not unmindful of the rule of the law of the case, but its application depends upon whether the interpretation of the facts of the case was in harmony with the facts as presented in this appeal. The court in the former appeal rightly stated the rule that an appellate court will look to the whole record to determine the theory upon which a case was tried and disposed of in the lower court. But the Appellate Court did not have before it the whole record of the case in the Hancock Circuit Court when it assumed as a fact that the trial court and all the parties proceeded on the theory of determining the rights and liabilities of the defendants to Millikan’s suit as between