
    Elizabeth Koch, Respondent, v. Jacob Hebel, Administrator, Appellant.
    Kansas City Court of Appeals,
    March 31, 1890.
    Appellate Practice: res adjudioata : second appeal. "When a case has been decided upon solemn argument and again comes to the appellate court by appeal or writ of error, only such questions will be noticed as were not determined in the previous decision ; whatever was passed upon must be regarded as res adjudioata.
    
    
      Appeal from the Johnson Circuit Court. — Hon. Chas. W. Sloan, Judge.
    Affirmed.
    
      O. L. Eouts and S. T. White, for the appellant.
    
      J. P. Orr and A. B. Logan, for the respondent.
    The former decision of this case is res judicata of this case. This is the identical case decided by this court in 32 Mo. App. 103. Grumley v. Webb, 48 Mo. 563 ; Bank v. Taylor, 62 Mo. 338 ; Chouteau v. Gibson, 76 Mo. 38; Forester v. Railroad, 26 Mo. App. 123; Baker v. Railroad, 34 Mo. App., loc. cit. Ill; Bevis v. Railroad, 30 Mo. App., loc. cit. 566.
   Smith, P. J.

This case was here on a former occaions and will be found reported in 32 Mo. App. 103. The evidence disclosed by the record there is substantially the same as in the present case. And so are all the instructions, except that in the present case the jury were instructed further that, if it should find for the plaintiff, it should allow her such a sum as it should believe the lot mentioned in the evidence was reasonably worth at the time of the death of defendant’s intestate, not to exceed one thousand dollars with interest thereon at the rate of six per cent, per annum from the commencement of the suit; and that the affidavit of the plaintiff annexed to her account should not be considered as evidence. No objection has been suggested to these instructions. They seem to have been given to meet the views expressed by us when the case was here the first time. No- specific objection is pointed out; the other instructions given, which, as has- already been stated, have been approved by us, whether these instructions were correct declarations of law as applicable to the evidence, is not now an open question, since the circuit court at the second trial proceeded in accordance with the theories they announced. The rule is that, when a case has been decided upon solemn argument and again comes to such court by appeal or writ of error, only such • questions will be noticed as were not determined in the previous decision; whatever was passed upon must be regarded as res adjudicata. Hombs v. Corbin, 34 Mo. App. 393.

As we held when the case was here before that there was evidence adduced sufficient to justify the court in submitting the case to the jury for their determination, so we must hold now. And we do not feel at liberty in this case to review the question again as to whether or not the performance of family duties should be placed in the category with labor done as gratuitous kindness. As a rule of law in this particular case, under the circumstances already indicated, it is unassailable. No question has been suggested which was not passed upon when the case was first here, and, therefore, our action must be limited to affirming the judgment of the circuit court,

in which all concur.  