In her petition for rehearing, appellant claims:
1. That this court was wrong in holding that it is bound by the facts found by the lower court; and
2. That this court was wrong in holding there was no prior adjudication.
[3] I. It is the settled rule of law in this state that where a law action is tried to the court without a jury, the finding of facts by the lower court has the same effect as the verdict of a jury, where there is any evidence to substantiate the finding of the lower court. Butterworth v. Farmers Merch. St. Bank,211 Iowa 1327, 236 N.W. 83; City of Cherokee v. Aetna Life Ins. Co.,215 Iowa 1000, 247 N.W. 495; Jones v. Wilson, 219 Iowa 324, 258 N.W. 82; Russell v. Peters, 219 Iowa 708, 259 N.W. 197.
In City of Cherokee v. Aetna Life Ins. Co., 215 Iowa 1000, loc. cit. 1003, 247 N.W. 495, this court said:
"The jury having been waived in this case, the court was in the same position that a jury would have been in. * * * This court has repeatedly held that, where the cause is tried to the court without a jury, the findings of the trial court on questions *Page 898 of fact are as conclusive and binding upon the Supreme Court as the verdict of a jury, and such findings will not be reviewed or disturbed by the Supreme Court where there is any evidence to substantiate them."
If, therefore, the evidence is sufficient to support the finding of the trial court, it is binding upon the Supreme Court. It is not for the Supreme Court to determine whether or not the case has been established by "a preponderance of the evidence". That is a question for the jury, and its functions cannot be usurped by the Supreme Court. In this case, there was a clear conflict in the evidence upon the question as to whether or not the defendant had entered into a contract for attorneys' fees as alleged in plaintiffs' petition. The lower court determined this question adversely to the defendant upon the evidence. It is, therefore, impossible for this court, under the law, to set aside such finding. It is also true that if the lower court had found the issue in favor of defendant, this court could not have disturbed such a finding. It is, therefore, the defendant's misfortune that the lower court found the facts in favor of plaintiffs.
[4] II. Appellant also complains that the lower court erred in failing to hold there was a prior adjudication on the question of the amount of attorneys' fees due from defendant to plaintiffs, because the lower court, in the divorce proceedings, awarded defendant, or the plaintiff in that case, a certain amount for attorneys' fees. The decree awarding such attorneys' fees in the divorce action expressly provided that the amount allowed was "to apply on their fees for services to plaintiff."
The question of attorneys' fees in the divorce action related to the amount plaintiff in that action might recover against the defendant, and not as to the amount her attorneys could recover from her. They were not parties to the divorce action, and while the allowance of attorneys' fees against Mr. Park was an adjudication as to the amount she could recover from him, it was not an adjudication of the amount of attorneys' fees they could recover from Mrs. Park. Hubbard v. Ellithorpe, 135 Iowa 259. There was no issue raised in the divorce case as to the amount of attorneys' fees due from Mrs. Park to her attorneys under a contract or otherwise. In order to constitute a prior adjudication, there must have been an identity of issues as well as *Page 899 parties in the prior action. Woodward v. Jackson, 85 Iowa 432, 52 N.W. 358; In re Dille, 119 Iowa 575, 93 N.W. 571; Mitchell v. Vest, 157 Iowa 336, 136 N.W. 1054; Betz v. Moore-Shenkberg Grocery Co., 197 Iowa 1348, 199 N.W. 254; Ashman v. City of Des Moines, 209 Iowa 1247, 228 N.W. 316.
In the case of Woodward v. Jackson, 85 Iowa 432, loc. cit. 435, 52 N.W. 358, this court said:
"To be a bar, a judgment must be between the same parties or their privies, and must equally bind both parties * * *. It mustappear that the question in issue in the present action is thesame as that passed upon and determined in the former action."
The question as to the amount of attorneys' fees due her attorneys from Mrs. Park was not an issue in the divorce action.
For these reasons and the reasons stated in the original opinion, the petition for rehearing is overruled.