
    Mary J. Maxwell vs. Olin S. Schwartz et al.
    
    Submitted on briefs Nov. 16, 1893.
    Affirmed Dec. 6, 1893.
    No. 8451.
    
      A former decision on appeal from an order held res adjudicata.
    
      Schleudtr v. Corey, 30 Minn. 501, followed, to the effect that, upon affirmance of an order for failure to serve paper book and brief, the matter involved in the order is res adjudicata, and cannot be presented again on appeal from the judgment.
    Appeal by A. E. Capehart, one of the defendants from a judgment of the Municipal-Court of the City of St. Paul, H. W. Cory, J., rendered against him and Olin S. Schwartz, April 20,1893, for $279.70.
    On June 11, 1892, defendant Schwartz gave his promissory note to plaintiff for $250 and interest due in thirty days. Defendant ■Capehart guarantied the payment of the note in writing indorsed thereon. This action was commenced August 17, 1892, against the maker and guarantor. Capehart served an answer which the Court on September 19, 1892, struck out as sham. Both defendants appealed from the order to this Court where the order was affirmed April 6,1893, for failure of appellants to serve printed copies of the return, assignments of error and brief. Eule XI. A transcript of the judgment of this Court and its mandate were filed in the Municipal Court and on notice judgment was entered April 20, 1893, in that Court against both defendants for the amount due on the note. From that judgment defendant Capehart appeals. The return on this appeal having been made and filed, the plaintiff moved this Court on notice and affidavit of the facts, that the judgment be affirmed' with three per cent damages. 1878 G. S. ell. 67, § 18.
    
      A. li. Capehart, pro se.
    
    
      James Schoonmaker, for respondent, cited Schleuder v. Corey, 30 Minn. 501; Adamson v. Sundhy, 51 Minn. 460; Tille ny v. Wolverton, 54 Minn. 75.
   Gileillan, C. J.

In the court below an order was made striking out the answer as sham. From this order the defendants appealed to this court, and at the last April term the order was affirmed for failure of the appellants to comply with the rule requiring the paper book and assignments of error to-be served. Judgment for plaintiff having been entered in the court below, the defendants bring this appeal therefrom. The only error claimed is in making the order •striking ont the answer. That matter is res adjudicata by the former judgment of this court, and cannot be again called in question on an appeal from the judgment. Schleuder v. Corey, 30 Minn. 501, (16 N. W. 401.)

(Opinion published 57 N. W. Rep. 141.)

The judgment is affirmed, with three per cent, damages.  