On Motion for Rehearing. We overrule plaintiff in error's motion for a rehearing. But consideration of it has forced us to conclude that the meaning of our original opinion cannot be clear.
In undertaking to establish the superior title to and right to possession of the lot in question, plaintiff in error, as appears from our original opinion, offered in evidence the judgment of foreclosure obtained by Fain-Townsend Company against Schuetze and wife; and also offered in evidence the execution and order of sale issued thereunder, etc., including a lis pendens notice. The admission of these instruments in evidence was objected to by defendant in error, on the ground that they were not binding on him, as neither he nor his predecessor in interest were parties to the suit wherein the judgment was obtained. These instruments were received in evidence, but received subject to such objection only. We assume that in the Fain-Townsend Company suit against Schuetze and wife, the Fain-Townsend Company made such proof of the establishment of a paving lien as entitled it to a judgment of foreclosure. But neither defendant in error nor Dr. Thoma, his predecessor in interest, was a party to that suit. His objection, therefore, that such judgment was not binding on him was good. Plaintiff in error did not ask leave to amend its pleading to set up the levy and fixing of the paving lien as against the defendant in error, and ask for a foreclosure. On the contrary, it chose to proceed just as though defendant in error, or his predecessor in interest, had been a party to the Fain-Townsend Company suit aforesaid, and just as though defendant in error thereby became bound by the proof made, and judgment obtained, in the Fain-Townsend Company suit. With the record in this condition at the close of the case, *Page 493 and it appearing that plaintiff in error was not in actual possession of the lot, the learned trial judge had no alternative but to find that there was no competent evidence before him in the case that would support a judgment to the effect that plaintiff in error had a better title to, or the better right to possession of, the lot. As the judgment of foreclosure, etc., in the Fain-Townsend Company suit was not competent evidence against defendant in error, and was not received as such, the trial court had to treat such evidence as non-existent. And his conclusions of fact and law clearly indicate that he did so.
Motion for rehearing refused.
PLEASANTS, C. J., absent.