ON REHEARING. We are satisfied with the statement of facts and the conclusions reached upon the points passed upon in the foregoing portion of the opinion written by TRIMBLE, P.J., on the original submission of the case. We do think that we can say that the quashing on July 24, 1917, of the execution issued upon the first judgment, there being no appeal, should be declared resadjudicata and a bar to the issuance of another execution, for the reason that the motion to quash the first execution is not contained *Page 413 in the bill of exceptions and therefore it does not appear that the execution was quashed upon a ground that would destroy the validity of the judgment. What there is in the abstract of the bill of exceptions shows the contrary.
It will be noted that three days before the first execution was quashed, or on July 21, 1917, plaintiff withdrew his motion to have the justice correct his transcript and on the same day the motion to quash was sustained, to-wit, on July 24, 1917, and presumably after the execution had been quashed the second suit was brought on the same lease for the same rent involved in the first suit plus rent for two other months. This was done with full knowledge of the facts. The second suit resulted in a final judgment in defendant's favor. The parties are therefore in the anomalous position of having two judgments on the same issues, one in favor of plaintiff and one against him. This condition was brought about by the action of plaintiff. We think that the doctrine of election applies and the bringing of the second suit on the same issues was an abandonment of all rights under the first suit and judgment. Plaintiff having to pursue his remedy by a second suit, he ought not to be permitted after judgment has been rendered against him to return to the first and assert rights thereunder inconsistent with the course he pursued in the bringing of the second suit. While we are unable to find any case where the facts are the same as those present in this case, we think the principles laid down in the following authorities fully apply by analogy. [1 Cyc. 756; 15 Cyc. 259; Bensieck v. Cook,110 Mo. 173; Barrett v. Stoddard County, 183 S.W. 644, 647; Nanson v. Jacob, 93 Mo. 331, 346; Welsh v. Carder, 95 Mo. App. 41, 46; Green v. City of St. Louis, 106 Mo. 454, 458; McClanahan v. West,100 Mo. 309, 322.]
Plaintiff claims that the inclusion in the second suit of the rent sued for in the first was a mere mistake which was orally corrected by eliminating that rent before the case went to a jury in the justice court. The record contradicts this. Plaintiff's petition or statement in the *Page 414 justice court shows that this rent was sued for and the transcript of the justice brought here by the additional abstract filed here after the granting of the rehearing contains the following, immediately after the style of the cause, "Rent $220." This was the amount sued for in the statement and, as before stated, the statement specifically included the rent sued for in the first suit. There is nothing in the record of the justice or in the circuit court to show other than the full amount sued for was demanded at all stages of the proceeding. Under such circumstances the record can not be varied by parol. [Sutton v. Cole, 155 Mo. 206, 214; Secs. 2726 and 2900, R.S. 1919.]
The motion to strike from the files the supplemental abstract of the record is overruled. The granting of the rehearing reopened the case and gave it the same status as if it had never been heard by this court. The appellant, therefore, had a right to file his supplemental abstract within the time required by the rules.
The motion to quash the execution dated December 12, 1919, should have been sustained. The judgment is reversed and the case remanded with direction to quash said execution. All concur.