ON PETITION FOR REHEARING. In his petition for rehearing the appellee Binkley indicates that Mr. Beck, who was president of both banks when the "undertaking" was entered into between them, is living and 13. available as a witness to the terms of the agreement, and that there are certain notes still extant and in the possession of the First State Bank of Bourbon, which are part of the original notes transferred, and that they are available as evidence of the character of the indorsement, if any. In view of these facts, it has been concluded that the original mandate should be modified, and that the appellant's motion for a new trial should be sustained.
In the original opinion questions involving the claimant's contention that the questions involved had been fully adjudicated in a former proceeding were not passed upon. The 14. proceedings in question arose upon a petition by the appellee Binkley for an order enjoining the banking department from proceeding further with liquidation proceedings upon the ground that the Bourbon Banking Company was solvent and that there were no claims against it. The First State Bank of Bourbon was not a party to the proceeding. The court found that the note here in question was a valid and subsisting obligation, but if the finding had been otherwise it could not have bound the First State Bank, which was not a party to the proceeding. The question of the validity of this note was only incidentally *Page 115 before the court in that action. If this claim founded on the note had been then pending in the liquidation proceedings, its validity could not have been determined in the other proceeding. There was no issue made between the First State Bank of Bourbon and the Bourbon Banking Company or the Department of Financial Institutions of the State of Indiana representing the Bourbon Banking Company, and therefore no basis for an adjudication of the questions involved in this law suit. See Whitesell et al. v. Strickler et al. (1907), 167 Ind. 602, 78 N.E. 845, and cases cited.
The mandate in the original opinion is modified, and the judgment is reversed, with instructions to sustain the appellant's motion for a new trial, and for further proceedings not inconsistent herewith.
Richman, J. Not participating.
NOTE. — Reported in 31 N.E.2d 52.