51 Iowa 409 | Iowa | 1879
The reply to the answer shows that in a former action bi’ought by jilaintiff against defendant, upon one of the notes given for the purchase of the lot, the identical defense herein
It was shown by the testimony that the judgment and decree in the action pleaded by plaintiff was rendered as alleged in his reply, but that, upon an appeal to this court, an opinion had been filed reversing the judgment of the court below. Subsequently a rehearing was granted in this court, and, upon- a reargument, a different conclusion was reached, and ’a judgment finally rendered affirming the decree of the court below. The case is reported in 46 Iowa, 644, and was affirmed on the ground that it was not triable de novo in this court, and no errors were assigned upon the record. ’ The first opinion filed by us considered the case upon the merits, as we deemed it triable here de novo. But we were shown upon the rehearing that we had mistaken the condition of the record, and that the case could not be triable de novo.
Defendant’s counsel announce the undisputed rule of law that a former judgment will not be effectual as a bar to an action, unless it was rendered upon a trial on the merits. If the trial went off on any technical point the judgment will be no bar. It is insisted that, as the judgment of affirmance in this court was not upon the merits, it is not a bar to-this action. Counsel, in our judgment, mistake the facts upon which they rely in the application of this rule. The judgment of the court below was upon the merits of the case. The appeal to this court suspended that judgment; the final judgment of this court affirms it. The judgment in the case-now of force was upon the merits. There was no final judgment rendered upon our opinion reversing the case. It had no effect whatever upon the judgment of the court below. The fact that our opinion upon the merits of the case was adverse to the decision in the court below did not affect that
We conclude that the court below correctly held that this defense was barred by the former judgment.
Affirmed.