APPLICATION FOR REHEARING

No. 3325. Decided Feb. 17, 1942

Submitted on • application for rehearing. One of the grounds of the application is that our decision of date January 31, 1942, was released prior to the filing of reply brief by defendant. The last brief to be filed according to the appearance docket in this Court was on behalf of the plaintiff and of date January 24, 1942. No reply brief seems to have been filed. However, we believe that the briefs which were before, us originally and the one filed by defendants in conjunction with the application for rehearing sufficiently inform us of the respective claims of the parties. We are of the opinion that the second defense of the answer to the second amended petition is not proven.

The application will, therefore, be overruled.

OPINION

We have heretofore determined that the subject matter set up in plaintiff’s second amended petition is not stare decisis by reason of the judgments in State ex Foster v Miller et, 136 Oh St 295, and 137 Oh St 503.

We are satisfied that these judgments do not constitute res adjudicata. Moore v Dunn, 41 Oh St 62. Davis v Arnett (2 Syl.) 25 Abs 402.