Gaff v. Greer.

question, said: "This court, having no ecclesiastial jurisdiction, cannot revise or question ordinary acts of church discipline or excision. Our only judicial power in the case arises from the conflicting claims of the parties to the church property and the use of it. * We cannot decide who ought to be members of the church, nor whether the excommunicated have been justly or unjustly, regularly or irregularly cut off from the body of the church."

The same rule is asserted in the following cases: State v. Farris, 45 Mo. 183; Robertson v Bullions, 9 Barb. 64, 134; German, etc., Church v. Seibert, 3 Penn. St. 282; Gibson v. Armstrong, 7 B. Mon. 481; Harmon v. Dreher, 1 Speers Eq. 87. These authorities establish the proposition 'that the decision of these judicatories is binding upon the courts where such questions arise. It is said however that the appellants had no notice, and for that reason the order is a nullity. This was a question for the presbytery. We cannot revise its judgments nor determine its mode of procedure. This must be left to these bodies, otherwise they would be deprived of the power to construe the laws that govern them; besides, in this dispute, the appellants had several times been before the presbytery, and had filed the written statement that invoked the judgment under discussion. In the civil tribunals such steps would confer jurisdiction, and we cannot say that the presbytery which assumed it did not possess it. State v. Farris, supra; Watson v. Jones, supra.

The appellants being bound by the judgment of the presbytery, it follows that the court below did not err in rejecting the proffered testimony. This judgment establishes the fact that the majority had seceded from the church; having done so, they thereby forfeited all right to any portion of the church property. This proposition is well settled. Hale v. Everett, 53 N. H. 9; s. c., 16 Am. Rep. 82; Watson v. Jones, supra.

It is equally well settled that those who remain in the church, though they are in the minority, retain the property and are entitled to its control and management. Ferraria v. Vasconcelles, 23 Ill. 403; McGinnis v. Watson, 41 Penn. St. 1.

We are thus led to the conclusion, upon the undisputed facts in this case, that the appellees, who represent the church, are entitled to the possession of its property.

[Minor point omitted.]

Felton v. Smith.

We have now passed upon all the material questions in the case, and as there is no error in the record, the judgment should be affirmed.

Per Curiam. It is therefore ordered, upon the foregoing opinion, that the judgment be and it is hereby in all things affirmed, at the appellants' costs.

Petition for a rehearing withdrawn.

Judgment accordingly.

FELTON V. SMITH.

(88 Ind. 149.)

Judgment — former — estoppel.

Where a partial defense is pleaded to one of a series of notes, a judgment for

A

less than the face of the note has no effect as to the other notes.

CTION on note.

The opinion states the case. The defendant had judgment below.

G. W. Paul and J. E. Humphries, for appellant.

E. C. Snyder, for appellee.

ELLIOTT, J. The appellee succeeded in the court below upon the defense of a former adjudication, and the appellant contends that the judgment in the former action not only did not settle the controversy in appellee's favor, but so far from doing so, actually determined the question in issue in that action, as well as all questions involved in the present action, in favor of the appellant. Our opinion is that both parties are wrong, the appellant as claiming far too broad a scope for the judgment in the former action, and the appellee as incorrectly extending it beyond its just and legal effect, but in a different direction. We think the appellant is however so far in the right as to entitle him to a judgment of reversal. The action is upon the assignment of the second of a series of four promissory notes; the former action was upon the first of the same series of notes. In that action the appellee pleaded the gen

Felton v. Smith.

eral denial; that the assignment was without consideration; that the consideration for the assignment of the four notes was $200; that the consideration of the assignment was $100, and no more; and that the defendant was entitled to a set-off of $100. Replies were filed; trial had, resulting in a verdict and judgment for appellant, who was there the plaintiff, in the sum of $300, which was $350 less than the principal and interest of the note sued on, and $250 less after allowing $100 on account of the set-off pleaded.

It is evident that the appellee recovered on the plea of set-off and on his plea averring partial failure of consideration. That plea is a peculiar one. It professess to be only a partial answer; avers that the interest in property which formed the consideration for the assignment was of the value of not more than $200, and concludes thus: "Wherefore the defendant says plaintiff should not recover more than $200." It thus appears that the defense is a partial one to the single cause of action declared on; a decision on it did not therefore necessarily settle the whole controversy. Appellee's contention is that appellant recovered in the former action the entire consideration for the four assignments. This position rests upon the assumption that the recovery in that action exhausted the whole consideration. If this assumption is made good the conclusion must follow; but is it? The general verdict was against the uppellee except only as to the amount of recovery, and was therefore adverse to him on all other questions. It is difficult to justify his assumption with the verdict directly against him; but suppose it is granted that the verdict does sustain his partial defense, then the further question springs up, did it sustain the defense further than was necessary to enable the jury to determine the amount of recovery upon the particular cause of action declared on? The assumption is rested on the ground that as the jury found less than the amout due upon the note after deducting the set-off, they must have found for him upon his answer that the consideration for the four notes was not more than $200. But this will not do, for the issue tried was that tendered by the complaint; the finding was upon the one cause of action declared on, and the damages were assessed upon that one cause of action. and no other. In finding for the plaintiff the jury necessarily found for him on the cause of action declared on, and in assessing damages assessed them on that one cause of action, and no other.

The four assignments were as many separate and distinct causes of

Felton v. Smith.

action, upon each of which an action might be maintained. The cause of action sued on in this case was independent of the others, and the recovery of the appellant was on that one cause of action alone. The amount awarded him was not upon three contracts not sued on, and which constituted independent causes of action, but upon the one contract sued on. The verdict and judgment settled nothing more than the right of the appellant to recover on the cause of action stated in the complaint. In Campbell v. Board, etc., 71 Ind. 185, it is said: "A recovery on a part of a cause of action which is divisible is not a bar to an action brought upon the other part; but a recovery on the whole cause of action, of only a part of the amount, is a bar to a suit brought on the same cause of action for the balance of the amount.

Where a judgment settles the entire defense to a series of notes, although rendered upon one only of the series, it conclusively adjudicates the controversy as to all of the series. This is so how

ever only where the entire subject-matter of the defense is litigated in the one action, and is determined by the judgment. It is not so where the litigation is as to the one note declared on, and the judgment does not extend to the whole subject-matter of the entire series of notes. French v. Howard, 14 Ind. 455; Hereth v. Yandes, 34 id. 102; Turner v. Allen, 66 id. 252; Gardner v. Buckbee, 3 Cow. 120; s. c., 15 Am. Dec. 256; Edgell v. Sigerson, 26 Mo. 583; Hazen v. Reed, 30 Mich. 331. In this case it cannot be said that the judgment determined the entire controversy, for the appellee did not succeed upon the issues tendered by him; nor on the other hand, did the appellant obtain judgment for all he claimed. If the latter had recovered judgment for the full amount claimed, he could not successfully claim that it settled his right to recover on all the other notes. Nor can it be justly sail in the case before us that the whole subject-matter of the controversy was litigated, for the defenses pleaded were different, and those professing to go to the entire subject-matter did not necessarily involve an investigation to an extent beyond what was necessary to ascertain the appellant's measure of damages. This we say for the reason that under a plea of want of consideration partial failure may be shown.

If the verdict and judgment had sustained the plea of want of consideration, then it might, with some plausibility, have been maintained that the whole controversy was determined; but this they did not do, for they merely cut down the ap

pellant's damages, and did not find that he had no cause of action. The appellant established his cause of action, but did not recover all the damages his prima facie case entitled him to, and his adversary did not succeed in establishing any defenses except such as went to the amount of recovery, and it cannot be said that this extended beyond the cause of action declared on. The issue decided was really as to the amount to be recovered on that single cause of action, and not as to the amount to be recovered upon some other cause of action. If the appellee had filed a counterclaim showing cause for the cancellation of the other notes, a different case would have been presented. But whatever may be the rule in such a case, the judgment in the one at bar settles nothing more than the measure of recovery in the cause of action declared on. It does not conclude the appellant from maintaining an action on his other notes; nor on the other hand, does it preclude the appellee from defendant against them. The former cannot claim, that as he recovered $300 on the note sued on in the former action, he is, by force of that judgment, entitled to recover a like sum on each of the other three notes; nor can the latter justly claim, that as he succeeded in cutting down the amount of the recovery, he is entitled to have the judgment regarded as conclusively settling the question that the consideration for the indorsement of the four notes was no more than the sum recovered in that action.

If the sum recovered in the former action was the entire consideration paid for the indorsement of the four notes, then there can be no recovery on the other three contracts of indorsement; but this is a defense altogether different from that of res adjudicata, as here relied on. It is a defense not to be made out by the mere production of the record of the former action, but to be made out by supplementing evidence of the former action and judgment with proof of the fact that all of the consideration was exhausted in the former recovery. The record of that recovery does not show that the sum allowed as damages exhausted the consideration for all the notes. Nothing more can be justly claimed for that record than that it shows that the defense prevailed to the extent of $250, and that although the plaintiff established a cause of action, he showed himself entitled to only the amount of damages awarded by the jury.

The fact that the appellant recovered less than the sum his VOL. XLV-58