Upon Rehearing. Counsel for the movant complains that we did not give consideration to certain cases cited in his original brief, especially Stevens v. Hertzler, 114 Ala. 563, 22 So. 121, and Phœnix Chair Co. v. Daniel, 228 Ala. 579, 155 So. 363. These cases were not overlooked in the preparation of the original opinion, as the distinction was so patent that a discussion of same would be superfluous. The principles laid down in these cases in nowise conflict with the present holding. In both of these cases, the first action was at law, and the defendant in each had an equitable defense not available in said action at law.
Here, the first suit referred to in the defendant's special plea 3 was a proceeding in equity to enforce the vendor's lien on the $4,000 Smolian note, wherein these plaintiffs, as indorsers of said note, were made parties, and a deficiency decree was sought and recovered against them, and, if Rutledge had no right to proceed, or if these plaintiffs were not liable on said note, these facts were available in said suit in equity.
It is also contended that the case of Irby v. Commercial Nat. Bank of Eufaula, 204 Ala. 420, 85 So. 509, is unlike the case at bar. Of course, that case is not on all fours with the case in hand, and said case was only cited in so far as it repeated the well-settled principle that the first suit was res judicata not only as to issues actually settled in the first suit but which could have been adjudicated.
The rehearing is denied.
THOMAS, BROWN, and KNIGHT, JJ., concur. *Page 496