
    ERROR — JUDGMENTS.
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.]
    Marvin, Winch and Henry, JJ.
    
       Joseph Kesting v. East Side Bank Co.
    Defendant Unsuccessfully Prosecuting Error to Judgment on CognovitNote cannot Elect to Vacate Judgment at Subsequent Term upon! Another Ground.
    A petition by an accommodation maker on a cognovit note, filed under favor of R. S. 5354 (Gen. Code 11631), to vacate a judgment rendered at a previous term for more than was due, is debarred by his having unsuccessfully prosecuted error upon another ground under R. S. 5309 (Gen. Code 11580), when he might have applied for a new trial under R. S. 5305 (Gen. Code 11576) upon the ground of accident or irregularity. "
    [Proof of this decision was submitted to Judge Henry and corrected. — Ed.]
    Error to common pleas court. '
    
      Blcmdin, Bice & Ginn, for plaintiff in error. «
    
      Shmurk cfe Thompson, Hills, McGraiu & Van Derveer, for defendants in error
    
      
      Affirmed, no op., Kesting v. Bank, 76 O. S. 591.
    
   HENRY, J.

The parties uo this proceeding in error stand in the same relation as in the court below. That court dismissed plaintiff’s petition, filed under favor of R. S. 5354 (Gen. Code 11631), to vacate a judgment rendered against him at a previous term on a cognovit 'note for more, as he now claims, than was due. The failure of the court to vacate that judgment is the error here assigned.

The parties live in Toledo, and plaintiff was an accommodation maker .of the cognovit note in controversy, to the Bast Side Bank as payee. He claims that at the time of the delivery of the note, the bank agreed with him that the same was to be amply secured by a chatted mortgage of the principal maker; that the plaintiff’s name was required upon the note merely to comply with the bank’s rules, and that he would never be required to pay the same. He further claims that such a chattel mortgage was in fact given soon afterwards; but that the bank, at the instance of the principal maker of the note, omitted to file it, whereby the lien was lost; that the principal maker having meanwhile departed from the state leaving no property here, the bank, without notice to the plaintiff, procured judgment to be rendered against him in Cuyahoga county. The plaintiff further. claims that he is ignorant of the residence of the principal maker of the note, and that on this state of facts he is entitled to have the judgment vacated.

On the trial below the defendant offered in evidence the record in the primary ease, from which it appears that a proceeding in error was then unsuccessfully prosecuted in this court for alleged error consisting ,of misnomer of the defendant therein. But the points made in the present action were not litigated in that proceeding. No reason appears why the plaintiff might not have done so; for, when he became aware ■of the judgment, he was entitled, under R. S. 5309 (Gen. Code 31580) and Chap. 5, commencing with R. S. 5305 (Gen. Code 31576), to apply for a new trial upon the ground of accident or irregularity. He chose not to take this course, preferring instead to rely wholly upon the alleged misnomer. No doubt R. S. 5354, which he now invokes, afforded a cumulative, or rather an alternative, remedy. That is to say, he was entitled to resort to it, in the first instance, rather than to R: ,'S. 5309, if he desired to do so. But having prosecuted error To the former judgment, without first applying for a new trial upon the grounds then known to him, we think he is now debarred, by his election, from seeking anew the relief which was then available. Becker v. Walworth, 45 Ohio St. 169, 173 [12 N. E. Rep. 1]; Buell v. Cross, 4 Ohio 327, 330.

In Pollock v. Cohen, 32 Ohio St. 514, it was held that a second petition in error, upon the same record, but upon new grounds, known but not asserted before, will not be entertained. In Kunneke v. Mapel, 60 Ohio St. 1 [53 N. E. Rep. 259], it was held that a party defending is bound to set up all matters which are strictly matters of defense, and if he fails to do so, he cannot afterwards reiitigate the controversy, upon the omitted issues. See also Mengert v. Brinkerhoff, 67 Ohio St. 472 [66 N. E. Rep. 530], and Jenkins v. Esterly, 24 Wis. 340, a case very like the one before us. It is true there is a contrary intimation in Parker v. Haight, 7 Circ. Dec. 609 (14 R. 548), but that was a mere dictum and not necessary or even pertinent to the decision.

Entertaining the view thus indicated, we find it unnecessary to discuss the sufficiency of the defense, to the primary action as now offered; though it may be doubted whether the prayer of the petition to vacate should have been granted on its merits, in view of the seeming authority of Shaul v. McCauley, 1 O. S. U. 380 (34 Bull. 278), affirmed without report, Shaul v. McCauley, 53 Ohio St. 676.

The judgment below is affirmed.

Marvin and Winch, JJ., concur.  