
    PAHL v DOLL
    Ohio Appeals, 1st Dist, Hamilton Co
    No. 3873.
    Decided June 1, 1931
    M. C. Lyknis, Cincinnati, for Pahl.
    L. R. Schear, for Doll, Receiver.
   HAMILTON, J.

It would appear from the motion that the defendants below sought to raise the "question of res adjudicata in the case. The law is that this defense must be set up by answer, and the burden is on the party alleging it to prove former adjudication.

This procedure was not followed in the case, and the court very properly overruled the motion.

However, if the question were to be con-, sidered in the case it would not avail plaintiffs in error, for the reason that the claim of res adjudicata is based upon the fact that prior to the bringing of the present action the receiver had sought to replevin certain goods held under a chattel mortgage by Doll and the Outfitting Company, of which Ben Doll was the receiver. The only question triable in an action in replevin is the right of possession of the property in question. Failing in the replevin suit the plaintiff below brought the action on the account. The bringing of the replevin suit and the suit on the account are separate and distinct causes of action and the prosecution of the replevin suit is no bar to the bringing of the action on the account.

For the reasons stated, the judgment of the Court of Common Pleas, affirming the judgment of the Municipal Court, is affirmed.

ROSS, PJ, and CUSHING, J, concur.  