ON PETITION FOR REHEARING.
STEWART, J.— A petition for a rehearing has been filed in this case, in which counsel for appellant urges that the opinion of this court, in holding that the action was for contribution, denies him the right to make a defense to such action, for the reason that the action was tried in the lower court upon the theory that it was an action founded upon a judgment, or to renew a judgment under the provisions of sec. 4499 of the Rev. Codes.
An examination of the appellant’s answer discloses that the only defense plead was that the respondent did not comply with the provisions of the statute, and because of such fact the court had no jurisdiction to render judgment against the appellant. Even if it be conceded that the action was for the purpose of having the judgment docketed in the name of the respondent, who had paid the same, still the appellant could have defended upon the ground that the respondent did not pay such judgment, or that the appellant had subsequently paid the respondent his proportionate share thereof, or any other defense which would defeat respondent’s right to have a judgment against appellant.
Counsel now contends in his petition for rehearing that the respondent paid the judgment out of money received by him from the Bunting estate. If so, the appellant could have urged such facts as a defense in the lower court. This matter was not res adjudicad a, because it occurred, if at all, subsequent to the entry of the original judgment.
*567So far as tbe record in this case shows, it does not appear that the appellant had any defense either to the action as it was treated in the district court or for contribution as determined by this court. If the appellant had no defense, the trial court committed no error in rendering judgment for the respondent, and if the appellant had a defense, it was his duty to have plead such defense. The petition for a rehearing is denied.
Sullivan, C. J., and Ailshie, J., concur.