
    Trout v. Marvin.
    
      Gaming laws— Sections 4273 and 4273 Rev. Stat. — Judgment for money■ lost at gaming — Lien on property where gaming was had — Reversal of judgment against property owner as winner— Not res adjudicata as to lien on property for winnings by others. \
    
    1. A judgment recovered under section 4273, Revised Statutes, by a third person for money won by the defendant from another at gaming, may, under section 4273, Revised Statutes, be made a lien on the property where the gaming was had with the knowledge of the owner; the reason of the statute having reference to the discouragement of gambling rather than to the natural justice of the case as between parties.
    2. Where a judgment, recovered against three persons under section 4273, Revised Statutes, for money won by them at gaming, is afterwards reversed as to one and affirmed as to the other two, in an action afterwards brought under section 4273, Revised Statutes, to make the judgment a lien on the property of the one as to whom it was reversed, the reversal of the judgment as to him can not be pleaded as res adjudicata in the latter action, the latter not being for the recovery of money won by the defendant, but to make a judgment therefor against others a lien on his property where, with his knowledge, the gaming was conducted and the money vson.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Hancock county.
    The question in this case arises upon the sufficiency of the petition in the court below, the action having been commenced March 7, 1896. It was an action commenced by the plaintiff in error against the defendant, under Sec. 4275, Revised Statutes, to make a judgment she had recovered against James Clifford and Jacob Gossman for money won by them of her husband, a lien on the property where the gaming was carried on with the knowledge of the OAvner, the defendant, William Marvin. A demurrer to the petition was sustained Avhich was affirmed by the circuit court.
    The petition states that William Marvin is the jAvner of certain property, particularly described therein, and had been for more than four years prior to the commencement of the action. That from March 20,1893, to March 19,1894, Clifford and Gossman had carried on the business of gaming and gambling in rooms in a building on the above described property belonging to Marvin, with his knowledge during all the time. That at the March term, 1895, of the court of common pleas she recovered a judgment against Clifford, Gossman and Marvin for $3473.00 and costs of suit under Sec. 4273, Revised Statutes, for money lost by her husband at gaming and won by the defendants. That afterwards the defendants prosecuted error to the circuit court where the judgment was reversed as to Marvin and affirmed as to Clifford and Gossman. That the games of chance in which the money was lost by her husband, Avere played within the period from March 20, 1893, to March 19, 1894, in rooms in a building on the property owned by Marvin as before stated, and with his knoAvledge during all the time; and asks that the judgment be made a lien on the property.
    The following sections of the statute are here inserted for convenience in considering the case:
    Section 4270: If any person, by playing at any game, or by means of any bet or wager, loses to any other person any sum of money or other thing of value, and pays or delivers the same, or any part thereof, to the winner, the person who so loses and pays, or delivers may, at any time within six months next after such loss and payment or delivery, sue for and recover the money or thing of value so lost and paid or delivered, or any part thereof, from the winner thereof, with costs of suit, by civil action founded on this chapter, before any court of competent jurisdiction.
    Section 4273: If the person losing such money or thing of value as provided in section forty-two hundred and seventy does not, within the time therein specified, without collusion or deceit, sue, and with effect prosecute, for the money or thing of value so lost and paid or delivered, any person may sue for. and recover the same, with costs of suit, against any winner as aforesaid, for the use of the person prosecuting the same.
    Section 4275: The property, both real and persdnal, of a defendant, against whom a judgment is rendered under this chapter, either for fines, coste or to recover money, or other thing of value, lost or paid, shall be liable therefor, without exemption, and such judgment shall be a lien thereon until paid; if the owner of the building in which the money was lost knowingly permits it to be used for gaming purposes, such building, and the real estate upon which it stands, shall be liable therefor in the same manner; and the guardian or trustee of a minor, insane person or idiot, who permits any property under his charge to be used for gaming-purposes, and the same becomes liable on account thereof, shall be liable to his ward for the amount thereof.”
    
      John Poe, foiyplaintiff in error.
    
      Geo. H. Phelps and J. A. & E. V. Bope, for defendant in error.
   Minshall, J.

Two grounds are relied on in support of the demurrer i 1. The action against the defendant is res adjudícala. 2. The provisions of Sec. 4275, Revised Statutes, apply .onlyato judgments recovered by the loser under Sec. 4270, Revised Statutes.

We will briefly notice these objections in their order.

The judgment recovered against Marvin, Clifford and Gossman, and reversed as to Marvin, was recovered under sestion 4273, giving to a person, other than the loser, the right to recover money lost at gaming, where the loser fails within the time allowed him, to do so under Sec. 4270. Hence this action is not the same action previously brought against Marvin, Clifford and Gossman, the judgment in which was reversed as to Marvin by the circuit court, and is not, therefore, ros adjudicada. The object of this suit is to make the judgment recovered against Clifford and Gossman for money won by them at gáming, and which remains in full force and unreversed, a lien on the property where the gaming was carried on with the knowledge of the OAvner. Doubtless the judgment in the former suit against all three of them was reArers.ed as to Marvin, for the reason, that, in the opinion of the circuit court, there was not sufficient evidence to make him liable as a winner. This, however, does not affect the question as to whether his property may not be made liable to the lien of the judgment rendered against Clifford and Gossman, should it be made to appear, as is averred, that the gaming in which the money was lost, was carried on in his property with his knowledge. Such is the purpose and object of this action, and it is not affected by the judgment rendered in his favor -in the former action.

We are unable to accept the construction of the defendant in error, that the provisions of Sec. 4275 were designed for the benefit of the loser, where under Sec. 4270 he recovers a judgment. So far as natural justice is concerned it has little to do with a recovery under any of these sections.' The primary object of the legislature in their enactment was, not to do justice between the parties, but, in the interest of good morals, to discourage the vice of gambling; and it is quite as consistent with this policy to make a judgment recovered by a third person under section 4273, a lien on the property where the gaming was carried on in which the money was lost, as a judgment in favor of the loser under section 4270 where, in either case, the gaming was carried on with the knowledge of the owner.

Reversed and remanded for further proceedings.  