Penn v. Schmisseur , 1898 Ill. App. LEXIS 86 ( 1898 )

Mr. Justice Worthington

delivered the opinion of the court.

This case has been before the court, and is reported as Schmisseur v. Penn, 47 Ill. App. 279. After a full review of the facts and authorities, the court say; “ The easement was an incumbrance, and her right of way appurtenant is not included in the term highway as used in Sec. 10 of the conveyance act, and that incumbrance existing at the time of the delivery of the deed to the defendant by the complainant, the implied covenant existing in that deed by reason of the statute was broken on the delivery of the deed. See Wadham v. Swan, 109 Ill. 46; Christy v. Ogle’s Executors, 33 Ill. 295. And that defense may be set up in answer to a bill to foreclose a mortgagegiven to secure the purchase price. See Patterson v. Sweet, Adm’r, 3 Ill. App. 550; Coffman v. Scoville, 86 Ill. 300; Tenney v. Hemenway, 53 Ill. 97. The evidence showing that the defendant was damaged by reason of the existence of the right of way, the extent of the damage should have been set off against the amount of the notes, and that not being done the decree must be reversed and the cause remanded.”

Under this decision the case being remanded, there was nothing for the court below to do but to ascertain the amount of damages, and set it off against the amount due on the notes. All other issues were decided. This being so, the introduction of the decree to prove the easement and breach of the covenant of warranty amounted to nothing. Such proof in the retrial of the case was immaterial. The case was not remanded to try this issue. It follows from this, that there was no error of substance in admitting the decree declaring the easement, although plaintiff in error was not a party to the case in which it was declared.

Questions once passed upon will not be considered in a second appeal of the same case. W., St. L. & P. v. Peterson, 115 Ill. 597; Smyth v. Neff, 123 Ill. 310; Flower v. Brumbach, 30 Ill. App. 294; Ogle v. Turpin, 8 Ill. App. 453; Cent. Warehouse Co. v. Sargeant, 40 Ill. App. 438.

“ Where some specific fact of question has been adjudicated and determined in a former suit, and the same fact or question is again put in issue in a subsequent' suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive uptin the parties in the latter suit, without regard to whether the cause of action is the same in both suits or not. Reynolds v. Mandel, 73 Ill. App. 381.

“ The only errors that can be assigned are those that may have arisen since the former adjudication of the case.” Mfg. Co. v. Wire F. Co., 119 Ill. 31.

As there is no exception taken to the amount of damage, and as all other issues were settled by this court at the former hearing of this case as reported in Schmisseur v. Penn, supra, there is nothing now before this court for review. Decree and judgment affirmeij.