On Motion for Rehearing.
On motion for a rehearing appellant complains that we erroneously found that the $8,000 chattel mortgage note was given in consideration of C. M. Cauble, payee, not filing a motion for a new trial in the Howard county suit, and that C. M. Cauble so testified. C. M. Cauble did not so testify. His witness and attorney who handled the transaction for him did so testify and as follows:
“I have already stated the purpose for which the $8,000 note was executed by George C. Cauble, payable to C. M. Cauble, and the consideration which is inquired about was for the purpose of indemnifying and securing C. M. Cauble against the payment of the judgment obtained in Howard county, in the suit of W. B. Currie v. George C. Cauble et al., and for the purpose of getting C. M. Cauble to not file a motion for new trial in such cause.”
Complaint is also made that we found C. M. Cauble paid the $2,011 on Currie’s judgment after he had gone to see G. C. Cauble, Sr., and obtained the $8,000 note; whereas it is contended that the payment was before that time. The matter is wholly immaterial since the undisputed evidence is that he made the payment after he and his attorney had full knowledge of both the judgments in the Howard county suit and after he had obtained' a correction in the amount of the Currie judgment and before the adjournment of the term at which they were rendered.
By two briefs and arguments in support of his motion appellant insists that we were in error in holding the pleadings and judgments of the Howard county suit admissible in evidence upon the two grounds stated in our opinion, the gravamen of the complaint being that since we hold the judgment void on the cross-action because of want of service of citation thereon, no effect can be given to it either as an admission of the facts stated or as an estoppel by judgment. Appellant has misconstrued our opinion in this respect, and especially in reference to the estoppel question. We simply held that in so far as the issue of res adjudicata was concerned the judgment was void for want of service; but by amended pleadings on this trial the ap-pellee I. B. Oauble pleaded all the facts and circumstances in connection with the judgments, which show both judgments to be valid subsisting judgments, because C. M. Cauble was duly served in the Currie suit and because he entered what is tantamount to an appearance in the suit on cross-action, with full knowledge of the judgments and pleadings upon which they were based, by having corrections made in the Currie judgment, by paying thereon $2,011 before adjournment of the' term at which the judgments were rendered, and by taking a note from G. O. Cauble, Sr., before the adjournment of the term at which the judgments were rendered in consideration of not filing a motion to set either judgment aside, for in reference to taking the note C. M. Cau-ble’s attorney not only testified that it was given in consideration of not filing a motion for a new trial in the Howard county suit, but that:
“When we explained to George C. Cauble that the judgment had been given I. B. Cauble over and against C. M. Cauble, then the question of security or indemnity came up.”
The above uncontroverted evidence clearly shows that C. M. Cauble recognized the I. B. Cauble judgment and intended to let it stand as a valid subsisting judgment on the issue decided, and he is clearly estopped to again litigate that issue, and is decisive of this case.
The motion is overruled.
Motion overruled.