
    The State ex rel. Samuel P. Sparks, Plaintiff in Error, v. Isaac Kaufman, Defendant in Error.
    Kansas City Court of Appeals,
    December 1, 1890.
    Assignment-: former judgment : penalty for nonpayment of dividend. Affirmed on the authority of Epright v. Iiaufmaji, 35 Mo. App. 455, and the history of the opinion in that case is given.
    
      Appeal from the Johnson Circuit Court.— Hon. Chas. 'W. Sloan, Judge.
    .Affirmed.
    
      W. W, Wood, for plaintiff in error.
    (1) This court is respectfully requested to reconsider and overrule its former decision in Epright v. Kaufman, 35 Mo. App. 455, for the reason that it is believed to be unsound in principle, and in direct conflict with the case -of Epright v. Kaufman, 90 Mo. 25. (2) The position taken by this court in the case of Epright v. Kaufman, 35 Mo. App., that the dividend and the penalty constituted one entire and indivisible cause of action, is wholly untenable. They were not liabilities in the same capacity. The dividend was recoverable and payable out of the funds of the estate in his hands, the penalty or interest being an individual liability. But this is no longer an open question : That the penalty accrued at the end of each current month, and can be recovered in a separate action, is rent judicaiem. Epright ». Kaufman, 90 Mo. 25.
    
      Q. L. Eouts, for defendant in error.
    Every proposition presented by the record in this case has been decided by this court as late as March, 1889. Defendant relies on that decision. Upright v. Kaufm,an, 35 Mo. App. 455. Reference is also here made to the brief of appellant in that case.
   Smith, P. J.

This case in all of its essential features is the sam§ as that of Epright v. Kaufman, Adm’r, reported in 35 Mo. App. 455, and we can perceive no reason why the rulings made in that case should not dominate this.

In consequence of a remark made by counsel in the argument of this case, it may not be out of place, for us to say that the opinion in Epright v. Kaufman was prepared by Judge Philips while he was a member of this court; but it had not been finally agreed upon by the three members of the court before the retirement of Judge Philips, so that it was not announced while he was on the bench. After Judge Gill and myself became members of the court, we found the opinion of Judge Philips and that the case had not been disposed of. Judge Ellison, having previously participated with his former associates in the consideration of the case, understood the rulings of Judge Philips. The record, briefs of counsel and opinion of Judge Philips were taken by Judge Gill and myself, and the whole ground covered by the controversy was gone over with more than usual care by each of us before consultation, and after due consideration we all reached the conclusion that Judge Philips had correctly stated and applied the law of the- case, and so his opinion was unanimously adopted by us, and announced as a per curiam opinion. Nothing has been stated either in the briefs or in the argument of counsel which we think would justify a change of our convictions. No satisfactory reason has been suggested to us why we should overthrow a decision which we think quite sound and well considered. We must adhere to that opinion. The judgment of the circuit court will be affirmed.

All concur.  