
    Menard v. Wilkinson.
    Where an immaterial issue had been found for the defendant, it was held that the Circuit Court erred in overruling a motion of the plaintiff for judgment on a material issue.
    APPEAL from St. Louis Circuit Court.
   Wash, J.,

delivered the opinion of the Court.

This was an action commenced by petition and summons in the Circuit Court, by the plaintiff in error, against the defendant in error, on a promissory note. The defendant pleaded,

First. Nil debet; and

Second. A former recovery in an action commenced in said Court by the plaintiff against the defendant, “on the same identical note in the above petition set forth, &C.”

Replication of mil tiel record to the second plea, and issue on both pleas. No disposition was made of the first issue.

The second was submitted to the Court, and^ was found for the defendant.

The plaintiff then moved the Court for judgment on the first plea, notwithstanding the finding on the second, because the issue found was an immaterial one, which motion was overruled.

He then moved to set aside the finding of the Court, and for a new trial, (and assigned various reasons,) which motion was also overruled. The plaintiff excepted to the opinion of the Court in overruling these motions, and now assigns them for error. Several points have been presented which we deem it unnecessary now to consider, since we think the plaintiff was clearly entitled to his judgment on the first issue.

The same identical note or piece of paper may have been used in both actions; but it would by no means follow that the same right of action, promise and undertaking was relied on and adjudged in both cases. The note may have been mis-described in the first action, or the plaintiff may have acquired title subsequent thereto. In looking into the record of the first suit, (as set out in the bill of exceptions,) it is shown that the note sued on in both cases is not the same. The descriptions are materially variant, and no parol proof was admissible to contradict the record and establish the identity.

The judgment of the Circuit Court is erroneous and must be reversed with costs, and the cause remanded.  