Finch v. Hollinger

l. judgment: Amanee. I. It must be conceded that, if there had been no appeal from the judgment first rendered by the Circuit Court, this action would not lie. It would have been a complete and final adjudication of the plaintiff’s right to the property in controversy. It was a *218general judgment upon the merits of the case, and upon the issues presented in the pleadings. One of these issues, that alleging want of notice was, it is true, in the nature of a plea in abatement of the action, but the issue of fraud was also presented, and the judgment was based on all the issues. It must be presumed from a general judgment, that all the issues were decided in favor of the successful party.

The affirmance in this court of the judgment of the court below, the opinion being based upon the want of the written notice required by section 3055 of the Code, was not a reversal of the judgment upon the other, issues. No judgment was rendered in this court. There was simply an affirmance of the judgment of the court below, which affirmance left the judgment and the rights of the parties precisely the same as though no appeal had been taken.

2. replevin : wrongful conversion. II. In any view of the ca_se we cannot see how plaintiff can now recover as for a. wrongful conversion of the property. He took the property upon his replevin, and yet re- , ^ i i «/ j. s. j tains it. If not barred by the former adjudication, his remedy is not an action for the wrongful conversion of the property, but one to recover back the money paid by him in satisfaction of the judgment. Counsel, in their arguments, cite and comment upon a large number of authorities bearing upon the question as to when a judgment is conclusive between the parties. We think this case must be determined upon the foregoing principles, which it seems to us are elementary.

Abbikmed.