The defendant Thom in his answer plqaded that theretofore,' to wit, on the 11th of. May, 1877, in an action brought in the same Court by the plaintiff against the same defendants, for the same cause of action, judgment was duly rendered and entered on the merits against plaintiff and in favor of defendant Thom, which judgment on appeal was affirmed, and remains in full force. The Court below in this action found that on the 17th of May, 1876, the plaintiff commenced an action in said Court against the defendants for the same cause of action as stated in the complaint in this action; that the defendants filed demurrers to the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action; that the demurrers were sustained, and plaintiff declining to amend, judgment was rendered and en- • tered, prior to the commencement of this action, in favor of defendants and against plaintiff, which judgment was affirmed *19on appeal. Judgment was thereupon rendered in this action in favor of defendant Thom.
The papers appearing in the transcript as printed are not verified as the papers constituting the judgment roll in the former suit, and used on the trial of the case at bar. The Judge of the Court below certified to the statement on motion for new trial, but the papers referred to are not contained therein, nor are they verified by the Judge.
There is, therefore, nothing in the record to show that the finding was not sustained by evidence.
Judgment and order affirmed.
McKee, J., and Thornton, J., dissented.
Ross, J., being disqualified, took no part in the decision,