
    Hutton et al. v. Curry.
    
      Gaming — Action to recover losses — Money won in-prior transactions — Not to be included, when — Charge to jury.
    
    Where in an action to recover money lost at gaming it is claimed, and evidence is offered tending to prove, that part of the money alleged to have been paid by the plaintiff to the defendant was in fact money won by the plaintiff and owing to him from the defendant in a former gambling transaction, it is error for the court to refuse to charge the jury that if it find this claim to be true, then the plaintiff cannot recover that part of his losses in the subsequent transaction represented by the credit given him by the defendant for money won by plaintiff in a former gambling transaction and in defendant’s possession at the time the credit was given.
    (No. 14888
    Decided January 25, 1916.)
    Error to the Court of Appeals of Hamilton county.
    On the 26th day of April, 1906, William S. Curry filed a petition in the superior court of Cincinnati against the plaintiffs in error, averring, among other things, that William E. Hutton, James M. Hutton and William D. Hutton are partners in trade, doing business in the city of Cincinnati under' the firm name and style of W. E. Hutton & Company; that from the 28th day of November, 1900, to the 23d day of March, 1901, the defendants conducted a place on East Third street, Cincinnati, at which bets and wagers were made and taken upon the rise and fall of stocks, grains and commodities; that between these dates the plaintiff wagered with the defendants large sums of money and paid and delivered to the defendants for and on account of such gambling transactions the sum of $1,280, whereby the defendants became and are indebted to the plaintiff in that sum of money, which was won from the plaintiff by the defendants between the dates named by means of wagers made by plaintiff with defendants on the rise and fall of certain stocks, the price of which were quoted by defendants at their place of business.
    The plaintiff further averred that on the 8th day of March, 1902, he filed in the same court a petition against these defendants to recover said sum of money with interest and costs; that the petition in that action stated the same cause of action stated in this; that the same was dismissed by the court, other than upon the merits of the cause, on the 8th day of March, 1902, and on the 30th day of April, 1904, this cause was reinstated by the court, and that on the 21st day of April, 1906, the court found and adjudged that this order of reinstatement was irregular and void, and the same was set aside and held for naught and thereupon the action was finally dismissed other than upon its merits.
    To this petition the defendants demurred because the action was not brought within the time limited for the commencement of such actions.
    This demurrer was sustained by the superior court in special term, but that judgment was reversed by the general term of that court and the judgment of reversal was affirmed by the supreme court of Ohio and the cause remanded to the superior court for further proceedings according to law.
    The defendants then filed an answer to plaintiff’s petition, and for a second defense pleaded certain facts upon which the superior court acted, when, on the 21st day of April, 1906, it found and adjudged that the entry of April 29, 1904, setting aside a former entry of dismissal, after term, was irregular and void.
    A motion was filed by the plaintiff to strike these averments from the answer for the reason that the facts pleaded in the second defense had been finally adjudicated in favor of the plaintiff.
    . This motion was sustained and the cause proceeded to trial, resulting in a verdict and judgment for the plaintiff against defendants for the sum. of $1,280 and costs.
    This judgment was.affirmed by the court of appeals of Hamilton county, and error is prosecuted in this court to reverse the judgment of the superior court and the judgment of the court of appeals affirming the same.
    
      Messrs. Ernst, Cassatt & Cottle, for plaintiffs in error.
    
      Mr. Thomas L. Michie, for defendant in error.
   Donahue, J.

The first question presented by the record in this case arises upon the judgment of the superior court of Cincinnati, sustaining the motion of the plaintiff to strike the second, defense from the answer.

The petition in this case sets forth in detail all the proceedings had in the first action, and particularly the entry in the superior court made on the 21st-day of April, 1906, in which that court found that the entry of April 29, 1904, setting aside said former entry of dismissal, was made without notice to or knowledge of the defendants, after term, and that such order was irregular and void, and for that reason the same was set aside and held for naught.

The presumption obtains that that judgment is fully sustained by the law and the facts, and therefore the averments of these facts in the second defense could not make it stronger or weaker. The demurrer to this petition, averring that such judgment had been entered, presented to the court the legal effect thereof. Necessarily the judgment on the issue joined by the demurrer adjudicates that this action is not barred by the statute of limitations. The motion was properly sustained.

The question whether this was or was not a gaming transaction is a question to be determined by the jury under proper instructions by the court.

The defendants requested ten special charges to be given to the jury before argument, some of which the court gave, but refused to give the sixth request, to which refusal the defendant excepted. That request is based upon the following evidence, given by the plaintiff upon cross-examination:

“Q. You had some prior transactions with Hutton & Co. before that date, November 28, 1900, had you not? A. Yes, sir.

“Q. The day before that you had received one thousand dollars, had you not? (Objected to by counsel for plaintiff; objection overruled.)

“Q. On November 27 you had received from them $1,064.51, had you not? A. Now, I haven’t my statement with reference to that, neither do I remember the exact date, but I do remember that shortly previous, and possibly it was the day before, that they did give me a check of which this $700.00 is a part simply to close up, to make the statement — the money was already, the $700.00 was already in the $1,035.00, if that is what you say it is; the bookkeeper simply gave me a check in order to make the transaction; the $700.00 was immediately handed back to them.”

From this evidence it appears that this $700 was money won by plaintiff from defendants in previous transactions, that it was immediately handed back to the defendants, that the exchange of checks was merely a paper transaction for the purpose of closing the books to that date and that this $700 is included in the judgment in this case.

While the defendants have not pleaded any offset or counterclaim, yet it is incumbent upon the plaintiff to show that he actually paid to them $1,280 of his own money for and on account of these gaming transactions. If this $700 was the money of the defendants, and was in fact part of the money paid to the defendants in this new gaming transaction, the plaintiff could not recover that money in this suit.

It is true that the plaintiff further testified that the former transactions were made in the interest of himself and others associated with him, but the jury would be authorized to find from this evidence that this $700 represents his share of the winnings to that date, particularly in view of the fact that he “immediately handed it back to them,” upon his own private transaction, but it is immaterial who was the owner, so long as it represented winnings in a gaming transaction, still in the possession and control of the loser.

Request number six should have been given to the jury and the jury permitted to determine whether this $700 was the money of Hutton & Company or the money of the plaintiff.

For error of the court in refusing to give request number six, this judgment must be reversed, unless the defendant in error shall, within thirty days from this date, enter a remittitur of that amount, with interest, and in that event the judgment, less $700 and interest, will be affirmed; otherwise the entire judgment of the superior court and that of the court of appeals affirming the same will be reversed and cause remanded for a new trial.

Judgment accordingly.

Nichols, C. J., Johnson, Newman and Jones, JJ-, concur.  