Belch v. Miller

Gill, J.

This is the same case that was before this court for review about a year ago (Belch v. Miller, 32 Mo. App. 387); and we are asked to pass again on the identical question — and the only question — which was then, and is now, presented by the record and briefs — and that question was then, and is now, whether the contract sued on is sufficiently definite and certain to support an action.

That question was decided, at the former hearing, in the affirmative, the cause was remanded to the lower court and tried in full recognition of that ruling. The point is res adjudicata, so far as this causéis concerned, and this court will not further consider the question.

“When a case has been decided in this court and again comes here on appeal, or by writ of error, only such questions will be noticed as were not détermined in the previous decision; whatever was passed upon at the former hearing will be deemed as res adjudicata, and no longer open to dispute or further controversy.” Overall v. Ellis, 38 Mo. 209; Metropolitan Bank v. Taylor, 62 Mo. 338; Hamilton v. Marks, 63 Mo. 167; Conroy v. Iron Works, 75 Mo. 651; Hombs v. Corbin, 34 Mo. App. 393; Lane v. Railroad, 35 Mo. App. 567.

Prom peculiar circumstances noticed in Hamilton v. Marks (supra) the supreme court of this state departed from the rule. ' However, we have nothing here suggested that should withdraw this case from its operation. We have here the same point -presented in the same case, and upon the same briefs, referring to the same authorities and none other. And that, too, after one decision by this court and a review thereof on ■a motion for a rehearing. Let the judgment of the circuit court be affirmed.

Ennison, J., concurs; Smith, P. J., not sitting.