
    MARION COUNTY v. COLER et al.
    (Circuit Court of Appeals, Fifth Circuit.
    May 10, 1898.)
    No. 690.
    1. Rks Judicata — Action on County 'Bonds.
    Where a judgment has been recovered against a county on its refunding bonds, and subsequently mandamus has been issued to compel the levy of a tax to pay such bonds, the question of their validity is concluded as between the same parties, and cannot be again raised in a subsequent suit.
    2. County Judge — Vacancy—Appointment by Commissioners.
    In Texas, three out of four county commissioners have power to appoint a county judge to fill a vacancy, who will be a judge do facto, if not de jure.
    In Error to the Circuit Court of the United States for the Eastern District of Texas.
    F. H. Prendergast and W. T. Armislead, for plaintiff in error.
    W. S. Herndon and Ben B. Cain, for defendants in error.
    Before PARDEE and McOORMICK, Circuit Judges, and BWA YNE, District Judge.
   PER CURIAM.

To this answer W. N. Coler & Co. filed the plea of res adjudícala, in effect, that the county was estopped from making this defense by reason of the judgment for the debt in the first suit on these bonds, and by reason of the judgment awarding the mandamus compelling the county to levy a tax to pay the first judgment. The court sustained the plea on the former adjudication as to the validity of the funding bonds, and directed the jury to return a verdict for the plaintiffs for the amount of the Urquhart bonds in suit.

We find no error in the ruling of the court. The validity of the Urquhart or funding bonds has been twice an issue between the same parties in the same court, and twice the decision has been against the plaintiff in error. On the facts admitted in the pleadings, J. M. Urquhart. at the time he signed the bonds and coupons in question, was county judge of Marion county de facto, if not de jure. The judgment of the circuit court is affirmed.  