
    Hemminway v. Davis et al.
    1. The time of the commencement of a term of court is to be determined by the record of the court, in connection with the statute under which the term is held, and parol evidence is not admissible for the purpose.
    2. In determining the question of priority between the lien of a judgment and the lien of a mortgage filed for record on the first day of the term, where the record fails to show the hour at which the court met, the session of the court will be presumed to have commenced at 10 o’clock a. M., that being the hour, on the first day of the term, fixed by statute for the return of the venires for the grand and petit juries, and at which time the court, where a different hour has not been prescribed, ought to have opened.
    3. In a suit by a judgment creditor, to marshal the several liens on real estate, and to distribute the proceeds of the sale thereof among such liens, according to their respective priorities, the fund still being under the control of the court, the fact that in a former suit between two of the defendants, to which the plaintiff was not a party, a decree had been rendered, giving to the junior lienholder priority, can not be pleaded as an estoppel to preclude the court from awarding to each lien priority according to its merits, the decree in the former suit having been rendered without the presence of the necessary parties, and the fund being insufficient to discharge all the liens.
    Errob to the District Court of Union county.
    On the 9th of May, 1859, Sophia Hemminway and Earmery Hemminway, her husband, obtained a judgment in the Court of Common Pleas of Union county, for the sum of $1,162, to bear interest at ten per cent., against Ira C. Johnson, Joseph Johnson, and S. K. Reed, and, May 18,1859, had execution thereon issued and levy made on one hundred and twenty-seven acres of land, in Union county, known as Johnson’s Tyler farm.
    On the 27th day of April, 1859, Joseph Johnson' mortgaged the said one hundred and twenty-seven acres to E. Messenger for $3,300, which mortgage was left for record with the recorder of Union county, May 9, 1859, at 11 o’clock A. M. On the 19th day of August, 1859, said Hemminway and wife filed their petition against said Johnsons, Messenger, et al., in said court, setting forth the said judgment; that Joseph Johnson was the owner of the said one hundred and twenty-seven acres of land; that Sophia Hemminway was the real party in interest owning said judgment, her husband being a nominal party only; that said mortgage was made, without consideration, to defraud the creditors of said Joseph Johnson, and praying the court to find their said judgment to be a lien on the said land prior to said mortgage; or, if not, that said mortgage be declared void for fraud and want of consideration; that the said lands be sold, and the said judgment be paid out of the proceeds, etc.
    The defendant Messenger answered, setting forth the record of the said mortgage, and that it was duly executed and delivered, and left for record, before the court sat, and before the rendition of the said judgment in favor of the plaintiff, and was a prior lien upon the premises; and that he gave full value for it, and asking that he be first paid, etc. The reply denied that the mortgage from said Johnson to said Messenger was left for record before the court sat and before the judgment was rendered, in favor of the plaintiff, against said Johnson
    On the 30th of April, 1861, a trial was had, and, upon hearing the evidence, the court found said mortgage to be a prior lien on said one hundred and twenty-seven acres; that said Hemminways’ judgment was the next lien thereon; that there was due to said Messenger on his said mortgage the amount by him paid thereon, which the court found to be only §1,658, including interest; that there was due to Hemminways $1,391, with interest thereafter at ten per cent. And the court then ordered said land to be sold by the sheriff, to pay, first, the costs; second, the amount due to Messenger, and then the amount due to Hemminways, and that he bring the residue into court.
    August 3,1861, the sheriff sold said land for $3,162.30.
    The sale was afterward confirmed, a deed ordered to be made to the purchaser, and the ease continued for the distribution of the proceeds of sale.
    February 20, 1862, M. Davis filed his petition in the Union Common Pleas Court against Ira C. Johnson, Joseph Johnson, Hemminway and wife, E. Messenger, Caleb Clark, Robert Y. Abrahams, and Philip Snider, setting forth that at a term of the said court, begun and, held on the 9th day of May, 1859, before 11 o’clock a. m. of said day, he recovered a judgment for $779.96, to bear interest at ten per cent., against said Johnsons; and, on June 13, 1859, caused execution thereon to issue and levy made on said one hundred and twenty-seven acres of land, and that they had no other property; the said mortgage of Johnson to Messenger; that it was made without consideration and to defraud creditors, etc.; the judgment of Hemminway and wife and their levy; the substance of their said petition, filed in said court August 19, 1859; the trial and the findings of the court therein ; that, August 3,1861, said sheriff', Philip Snider, sold said land, under said order, to said Robert Y. Abrahams for $3,162.30; that said Abrahams paid to said Snider the sum of $1,658 on the day of sale, and gave said Snider his note for the residue, payable about August, 1862; that said sum so .paid down and said note are in the hands of said Snider; that he, said Davis, was not a party to the said suit of Hemminway v. Messenger et al., and that the findings and orders in said case will do him great wrong unless vacated, and praying that said mortgage be annulled for fraud and want of consideration; or, if this can not be done, that the lien of the plaintiff Davis, by his said judgment, be adjudged prior to the lien of said mortgage, and of the same date and legal force and effect as the lien of said Hemminway on said land; that the order of the court made in the case of Hemminway v. Messenger et al., ordering said land to be sold, and distributing to said Messenger, of the proceeds, $1,668, and said Hemminway $1,391, be set aside and annulled; that said Philip Snider, sheriff', retain in his hands said money which may be paid thereon until the final determination of this case; and that said Abrahams be ordered not to pay any portion of said money now in his hands to any person other than said Snider, sheriff', or his successor in office.
    Messenger’s answer admits the filing of said mortgage for record, at 11 o’clock a. m. of May 9,1859; the recovery of the Hemminway and Davis judgments on that day, and the proceedings of the Hemminways, August 19,1859, for priority, and denies all other averments of Davis’ petition. Messenger then sets forth, as a second defense, in substance, the said petition of Hemminway and wife, filed August 19, 1859; the trial, the findings, and order of court therein; and avers that the said court did determine the several questions made by the pleadings in that case, and did find him entitled to priority over said Hemminways in his lien upon and title to said one hundred and twenty-seven acres of land, to the amount of $1,400, and interest from May 27, 1859, and did then and there settle and determine all questions relating to the consideration of said mortgage and to the fraud of this defendant and of said defendant Johnson; that, in and by said judgment in the said Hemminway case, all the matters in the present action involved, and all of the claims against this defendant now made, were fully and conclusively adjudicated upon and determined, and that said judgment still remains in force, etc.
    Davis replied, denying the matters of Messenger’s answer.
    At the September term, 1868, of the District Court, the following decree was entered :
    “ And this trial coming on further to be heard upon the petition of plaintiff Davis, the answer of said-Everett Messenger, the reply thereto (all the other parties being in default), aud also on the proof and arguments of counsel, the court, being advised in the premises, does find that the mortgage by said Messenger set up, is valid for the purposes therein mentioned, and is a lien on the real estate described therein, prior to others, except to said judgment of said plaintiff, which it is adjudged is a prior lien thereon to that of said Messenger.
    “ The court does further find that the statements in the second defense of said Messenger are true, aud that, as between the said Messenger and the said Hemminways, the equity of the case is with Messenger; that all questions between them as to the order of the distribution of the proceeds of said Tyler farm were, as in said second defense stated, heretofore fully determined by said Court of Common Pleas; and that after payment from the proceeds of •said sale of the Tyler farm of the amount due to plaintiff' on his judgment, the claim of said Messenger, heretofore determined by said judgment, to wit, thé sum of $1,568, should be next paid, and that the proceeds then remaining in the hands of said sheriff’ Snider be paid to said Hemminways.
    “ The court does further find that said Hemminways are estopped by said judgments from setting up or claiming any preference in the distribution of said money over the said Everett Messenger.
    “ The court does find that said Philip Snider, as sheriff' and special master commissioner of this Court of Common Pleas, sold, on the 3d day of August, 1861, the said Tyler farm for the sum of $3,162.30. The court does further find that there is due to plaintiff' the sum of $1,527.67 ; that there is due to said Messenger the sum of $2,243.60. It is • therefore considered, adjudged, and decreed that the said Philip Snider, the sheriff and special master aforesaid, pay out of the proceeds of said sale the costs herein to be taxed; second, that he next pay said sum of $1,517.67 to plaintiff; third, that he next pay to said Everett Messenger the said sum of $2,259.92, and that the balance, if any, of the pro* ceeds arising from the sale of said land he pay to said Hemminways.
    “ And it is further ordered and decreed that said Messenger and ITemminways shah account to the said Philip Snider, sheriff, for such sum of money, with interest, as either of them have received from him, for the purpose of enabling him to carry out this order.”
    To which ruling the following errors are assigned.'
    1. The District Court erred after finding, in accordance with said averments of the petition, that your petitioner’s judgment was the first lien upon the property, and equal to the lien of said Davis judgment, in decreeing that said Davis judgment should be first paid from the proceeds, and petitioner postponed to the payment of Messenger’s mortgage, by which it was wholly lost.
    2. That Said court erred in holding your petitioner estopped by the previous proceedings, to which Messenger, but not Davis, was a party, and in holding that no one else was estopped, giving to Davis, without making any claim to it, what had been decreed to her, and allowing Messenger to greatly increase the amount due on his mortgage and to be paid before the petitioner.
    3. The court erred that any estoppel properly applied to the case.
    
      Walker $ Kennedy, attorneys for plaintiff’:
    The lien of a judgment reaches back to, and dates with the commencement of the term, at which it was. entered. Code, sec. 421. Davis v. Messenger et al., 17 Ohio St. 231:
    When the time fixed for the commencement of a term of court arrives, the term then commences, and has legal existence, whether the judge does or does not attend. This necessarily results from section 593 of the code.
    The law has wisely withheld from judges the power, by caprice or corruption, to prevent, postpone, or accelerate the comm'encement of the legal term of the courts, at the time fixed therefor.
    If no precise hour for its commencement had been fixed, it would have commenced at some hour during that day. Eor if the judge had failed to appear on that day, the sheriff was required (Code, sec. 593) to adjourn over until the next day, a thing impossible if there was nothing to adjourn. What would be that hour ? It could not be fixed by the opening of the court on that dajr, for it is'supposed not to have opened. It could not be the last hours of the day, for that would clothe the judge with the forbidden power to shift the time of the commencement of the term.
    It will not be questioned that he might have appeared and opened the court during the morning hours. But he could not do this before the legal time fixed for the commencement of the term. If he could open at an early hour, it would be because the legal term commenced at or before such hour, which no action of his could accelerate or postpone.
    
      Follett v. Hall, 16 Ohio, is inconsistent with Davis v. Messenger et al., 17 Ohio St. 231.
    On May 9, 1858, Mrs. H. recovered judgment. May 9,1858, was the day the statute fixed for the commencement of the term (56 Ohio L. 16). The order of the judges fixed the precise hour (10 o’clock a. m. of said day) for its commencement. Of the order, and of the statute, the court must take judicial notice.
    If the court looks into the order, it conclusively fixed the commencement of the term at 10 o’clock a. m. If it looks into the statute only, it conclusively fixed the commencement at an earlier hour. And the lien of the plaintiff’s judgment attached at the first hour of the day at which the court might have legally opened for business, under this statute. It might have so legally opened at the first morning hour of the day.
    Herein the term commenced at that hour. Messenger’s mortgage attached at 11 o’clock A. m. The court gave him priority. Evidence must therefore have been admitted to contradict the full, sufficient, and conclusive evidence of both the order and the statute, and hence error.
    In the case of Hemminway v. Davis, Messenger, et al., the Common Pleas, “ by agreement of all the parties,” ordered that so much of said case as involved any controversy or conflict between Hemminway and Davis, all question about division between them, which of course included all questions of priority between them, should be severed and withdrawn from the case; that a separate case be and then was made up between Hemminway and Davis, and the said separate case so made up was continued, all of which was done before the hearing between Davis and Messenger, to whose case Hemminway gave no further attention. By this order of severance, every averment of Davis’ petition affecting Hemminway, and every right and interest of the latter involved in any issue or averment made in the case by any pleading therein, was withdrawn therefrom “ by the agreement of all parties.” How, then, any judgment or order could thereafter be entered in said ease affecting, prejudicial to, or concluding the rights of Mrs. Hemminway, as against either Davis or Messenger, is incomprehensible.
    It is not true that Messenger’s answer states that all questions between him and said Hemminways were fully determined by said judgment, but only that the questions between him and Davis had been so determined thereby. Nor is it true that any estoppel is averred, or judgment therefor asked, against Hemminways, but against Davis only.
    Thus is presented the anomaly of a judgment of estoppel and distribution, without averment or prayer against a party, all questions as to whom had, by agreement, been severed or withdrawn from the case in which entered.
    The court erred in giving priority to Davis over Mrs. Hemminway, after and when all question betweep them had been severed and withdrawn from the case. She was entitled to her day in court. The agreement and order of severance has never been revoked.
    The sole issue tendered by the pleadings was the relative priority of Davis and Messenger. Judgment of preference for the former over the latter was all the court had authority to render on the issues and questions not withdrawn. After determining the priority of Davis over Messenger, the parties should have been left to their rights under the former decree and the order of severance.
    
      William Lawrence and Joseph H. Lawrence, attorneys for Messenger:
    I. Real estate mortgages, duly delivered for record prior to the time when a term of' the Court of Common Pleas begins, have priority over judgments rendered at such term.
    It can not be said that a term of court commences before the judges authorized to hold court have convened. Follett v. Hall, 16 Ohio, 113; Holliday v. Franklin Bank, 16 Ohio, 533.
    II. If the day and hour are fixed by order of the judges, in pursuance of the statute of April 12,1858 (4 Curwen’s Stat. 3089), the record of such order, when given in evidence, is conclusive proof that the court then began. Davis v. Messenger, 17 Ohio St. That case does not conflict with 16 Ohio, 111, 533.
    III. The Supreme Court, in reviewing on error the proceedings of the Common Pleas, conclusively presumes that every judgment and finding of that court was on sufficient evidence. Broom’s Legal Maxims, 849; Johnson v. Mullen, 12 Ohio St. 10; Bethel v. Woodworth, 11 Ohio St. 397; 12 Ib. 179; Jones v. State, 20 Ohio, 34; 2 Ohio St. 569; Fortman v. Goepper, 14 Ohio St. 562; Brown v. State, 11 Ohio, 276.
    IY. Such finding can not be impeached by evidence offered on a petition in error. 6 Comyn Dig. 458, Pleader, 3 B. 15; 9 Johns. 159; 15 Johns. 87; 6 Ohio, 518; Hartshorn v. Wilson, 2 Ohio, 27; Nash Code Pleading, 692, and authorities cited above.
    Y. The Supreme Court, in revising the proceedings of the Common Pleas, do not take judicial notice either of the day or hour fixed for holding a term of the Common Pleas. It is a fact to be proved by evidence.
    In this case, the record does not show what day or hour the Court of Common Pleas commenced in May, 1859. The petition in the Common Pleas avers that judgment was rendered for Hemminway and wife May 9, 1859.
    The argument for the plaintiff in error asks this Court to take judicial notice of the alleged fact, that the order of the judges fixed the day and hour, May 9, 1859, at 10 o’clock a. m., as the commencement of the term. This the court can not do.
    The statute of February 9, 1859 (56 Ohio L. 16), fixed the day, but not the hour, of commencing terms of court. This statute is higher than any order, and hence annuls any order, if any was made.
    The journal entry of the court for May term, 1859, is: “This day the Court of Common Pleas for the county of Union and State of Ohio convened in pursuance to law.’’ The court was held under the law, not under an order.
    The Common Pleas had power, then, to inquire, by evidence, at what hour the court commenced on May 9, 1859, and to find, as a fact, that it was after Messenger’s mortgage took effect; or, if it acted on its own judicial knowledge, its finding is conclusive.
    The court should affirm the priority given to Messenger over Hemminway (in Hemminway v. Davis et al.), because—
    1. The decree of Common Pleas, of April 30,1861, in the case of Hemminway and wife v. Johnson, Messenger, et al., gives such priority; and this, until reversed, is conclusive.
    2. There is no error against Hemminway or wife in the decree of the District Court of September, 1868, which the plaintiff in error now seeks to reverse.
    It has been universally held in Ohio, that where a plaintiff, in a judicial proceeding, asks the sale of land, all parties are estopped by the decree of sale and distribution, whether any direct issue is made in the pleading or not.
    By the order for severance of January 23, 1863, the parties were not dismissed from the case. They were still in court and in the case. If any right or question which had been so severed was afterward decided, it must be presumed the parties submitted the matters to the court to be determined, for they were still in the pleadings, and that the decree was made on proper evidence. The authorities for ail thi* have "been before cited.
    
      Walker $ Kennedy, in reply:
    The statute of February 9, 1859, does not revoke the order of the court fixing the time for holding the court. The statute and the order are not inconsistent. Davis v. Messenger, 17 Ohio St. 231.
    A court can not legally convene except in pursuance of law; and when it meets in pursuance of an order made by authority of law, it convenes in pursuance of law.
    The decree of this court, in Davis v. Messenger, was followed in the subsequent decree of the District Court, as far as applicable, which subsequent decree is now under consideration. Messenger did not except to it. He has not prosecuted error to reverse it, but Hemminway has. How Messenger can have the former decree reversed, or this one modified, without exception, petition, pleading, or prayer, is a novelty in practice.
   White, J.

The case of Hemminway v. Davis et al. has already been before this court, and is found reported in 17 Ohio St. 231. In that instance Davis was the plaintiff in error, and on the case being remanded to the District Court, the judgment was rendered which Hemminway now seeks to have reversed.

When the case was before the court, at the time referred to, it was supposed both by the counsel then engaged in the case and the court, that the May term of the Court of Common Pleas of Union county for the year 1859 was held under the order of the judges issued in accordance with the act of April 12, 1858. 55 Ohio L. 82. The order was embodied in the bill of exceptions taken- in the case, and was referred to as the only authority under which the term of the court was held at which the judgments in question were rendered. The time fixed by the order for the commencement of the term was the 9th day of May, at 10 o’clock A. M. The journal of the court showed that the court convened on the day named, “in pursuance of law.”1 In the court below, parol evidence wa3 admitted to show that the court did not in fact convene until in the afternoon. This was held to be error, and that the record was conclusive evidence that the term of the court began at 10 o’clock a. m. ; and that for the purpose of affecting-the lien of a judgment, it was not competent to show that the court in fact opened at a later hour.

It now appears that on the 9th of February,1859,an act was passed fixing the terms of the Court of Common Pleas, and of the District Court, in the several counties throughout the state, for the year 1859. 56 Ohio L. 14. In the county of Union, the May term was to commence on the same day-prescribed in the order of the judges. It is likewise to be observed that the sections in the act of April 12, 1858,. under which the judges fixed the terms for the year 1859, were repealed by the act of April 6, 1859, without any saving clause In favor of the authority exercised by the-judges under the former act. 56 Ohio L. 238.

Under this state of legislation, it is contended for Messenger, the mortgagee : (1) That the May term of the court was held solely under the act of February 9, 1859; and (2) that under the authority of Follett v. Hall, 16 Ohio, 111, and of Holliday v. The Franklin Bank, Id. 533, it is competent to show by parol evidence the time of the day at which the session of court in fact commenced, for the purpose of ascertaining when a judgment lien attached. We assent to the first of these positions, but can not to the second.

In neither of the cases referred to, did the question arise as to admitting parol testimony to prove the time at which the court in fact convened. The mortgage in each case was filed for record at 8 o’clock a. m. on the first day of the term. In the first case the journal of the court appears to have shown the hour at which the court convened. See the dissenting opinion Birchard, J., p. 116. In the last case the hour is not stated. But there was no disputed question of fact as to the time in either case. The statute made it the duty of the grand and petit jurors to attend the court on the first day of the term, at 10 o’clock a. m. 1 S. & C. 752. The same statute was in force at the time of the holding of the term in question, and is still in force, with a modification allowing the judge to order the venire for the petit jury to be returned at a subsequent day of the term. S. &. S. 411; 70 Ohio L. 169.

It is as clearly the duty of the judge to be present at that time as it is the duty of the jurors. And it seems to us, in view of the cases cited, that in the absence of the contrary appearing from the journal of the court, the legal presumption is that the court opened at the hour named, and that ■this presumption ought to be conclusive. Such is the effect of the holding in Davis v. Messenger, supra.

The time at which judgment liens attach affects the validity of titles, and public policy requires that the rule •on the subject should be certain and uniform. Such liens ■ought not to be dependent on the uncertain and conflicting recollection of witnesses; nor ought they to be liable to be affected by the fact as to whether the testimony of the persons concerned in or cognizant of the holding of the court, is attainable or not. The same public policy that leads to the creation of such liens, requires that there should be •certainty in the mode of ascertaining when they attach. This certainty can only be obtained by holding that the fact is to be determined by the record of the court and the presumption arising therefrom, taken in connection with the law under which the court is held.

The decision in Follett v. Hall, and the one following it in Holliday v. The Franklin Bank, have to a certain extent become a rule of property. If, after the time that has ■elapsed since these cases were decided, it is deemed advisable to change the rule, it should be done by legislation rather than by decision.

But while we are not called on to review these cases, we ■do feel bound not to adopt a course- of reasoning sought to be derived from them, which, in our judgment, can not fail to lead, in practice, to mischievous results.

"Without, therefore, questioning the authority of these decisions when applied to the actual cases then before the court, we think they ought not to be extended so as to allow parol evidence to control the effect of the record of the ■court as to the commencement of the term. We are of ■opinion, therefore:

That the time of the commencement of a term of court is to be determined by the record of the court in connection with the statute under which the term is held, and that parol evidence is not admissible for the purpose.

That in determining the question of priority between the lien of a judgment and the lien of a mortgage filed for record on the first day of the term, when the record fails to show the hour at which the court met, the session of the court will be presumed to have commenced at 10 o’clock A. M., that being the hour on the first day of the term fixed by statute for the return of the venires for the grand and petit juries, and at which time the court, where a different hour has not been prescribed, ought to have opened.

The remaining question is, whether the court, after finding that the judgment liens were prior to the lien of the mortgage, erred in holding Mrs, Hemminway to be estop-, ped by the finding in the former suit from claiming the priority for her judgment to which it would otherwise have been entitled. In this we think the court erred. It is to be observed that the necessary parties were not before the court in that case, so that a complete decree marshaling the liens and ordering the premises to be sold free of incumbrances could not be made. Furthermore, the question of priority, as between Messenger and Hemminway, was practically immaterial in that case, the property being more than sufficient to discharge the liens of both. The finding in the decree and the sale under it were made on the mistaken supposition that all the lien-holders were before the court. If such had been the fact, the effect of the sale would be to discharge the property of all incumbrances. This was supposed to have been the effect of the sale. The sale was accordingly confirmed, a deed ordered to be made to the purchaser, and the case was; ordered to be continued for the distribution of the proceeds of the sale.

The petition of Davis, who was no party to the former suit, brings all the parties before the court, sets out the erroneous character of the former decree, and seeks to have the proceeds of the sale distributed to the parties according' to the priority of their several liens, without respect to the former decree. The purchaser is also made a party; and all seem to have acquiesced in treating the fund derived from the sale as being substituted for the property.

Under this state of the case, there seems to be no ground on which the finding in the former suit can be used by way of estoppel in this, in which new parties and interests are brought before the court. Estoppels are founded on-mutuality, and to the extent that one of the parties in interest is bound by the estoppel, all must be. Davis having been no party to the former suit is not affected by the decree. His judgment is superior to the mortgage, and coequal with the judgment of Hemminway. If the liens are-to be given priority in the distribution according to their merits, the judgments will be first paid. Ey making the distribution on tbe basis of the supposed estoppel, the Davis judgment would be entitled to the fund as against the mortgage, in which the Hemminway judgment would be equally entitled to share, and as the fund would come to-the Hemminway judgment, the mortgage would be again-entitled to it under the former decree. As the fund is insufficient to discharge all the liens, this course of reasoning' would leave the fund undisposed of. The claim that the-finding in the former suit ought to be conclusive between the same parties in the present ease, leads to the anomalous-result, that as to the two judgments which are equally entitled to share in the fund to be distributed, the one would-be preferred and the other postponed, in making the distribution, to the lien of the mortgage pn the sanie fund.

It may be claimed that the effect of the former decree was to transfer Hemminway’s right of priority- to Messenger,. the mortgagee, and that in the distribution to be made in the present suit, the mortgage ought to be substituted in place of the judgment.

“We do not think so. That decree was rendered on the ■case then made, which was that the whole of the proceeds of the sale of the property was subject to be applied to the payment of the mortgage and judgment then before the court.. It was as clearly provided that so much of the proceeds of the sale as might be necessary for the purpose, after the payment of the mortgage, should be applied to the judgment, as it was that the mortgage debt should be paid. The former decree, when set up as an estoppel, must, if it ■operates at all, operate as an entirety. A party can not be deprived of the benefits of a decree, and yet be compelled, by estoppel, to bear its burdens. When, therefore, at the •suit of a party in interest, who ought to have been made a party to the original suit, but was not, it becomes necessary, in the distribution of a fund, to disturb and unsettle the findings of the decree rendered in the former suit, such -decree can not be pleaded as an estoppel, to preclude the court from awarding to each lien priority in the distribution according to its merits.

The record in the suit of Hemminway and wife v. Johnson, Messenger, et al., is also before us on error. That case was argued and submitted with the case we are now considering. The error assigned is the giving of priority to the mortgage. No bill of exceptions was taken in the case? nor does the record in that case otherwise show the facts on which the questiou of priority was determined. In the absence of such showing, the presumption is that the judgment of the court as to the priority was in accordance with the facts appearing on the trial. The judgment in that case must, therefore, be affirmed. The affirmance, however, gives no additional effect to the judgment. Hence the rights of the parties in the second suit remain the same as if there had been no petition in error to the judgment rendered in the first.

For the reasons already stated, the judgment in Hemmin way v. Davis et al. will be reversed, and the cause remanded for further proceedings.

Hay, C. J., McIlvaine, 'Welch, and Stone, JJ., concurring.  