Howell v. Sherwood. Said opinion is as follows: This is an action of ejectment, brought in the circuit court of Greene county, for the purpose of recovering possession of a certain tract of land lying and being in the city of Springfield, more particularly described in the pleadings. This is the second appeal of the case to this court. The first is reported in the 213 Mo. 565. Reference is here made to that report for a statement of the case. It will there be seen, that Charles Carleton was the common source of title, and that the plaintiffs claim through him, by virtue of various mesne conveyances. On the former appeal, we held that the sheriff's deed from Carleton to Jameson (one of the links in plaintiff's chain of title) was void, and conveyed no title whatever, for the reason that the court acquired no jurisdiction over Carleton or the subject-matter of the suit, in the case in which the judgment was rendered, upon which the execution was issued, under which the sheriff sold the tract of land to Jameson. The former holding of this court upon that question was res adjudicata, and was not therefore open for further adjudication by the circuit court, on the second trial. This court has repeatedly held that the rulings of this court upon the first appeal of a cause becomes the law of the case for the government of the lower court upon a second trial, as well as the law of the case upon a second appeal to this court. [Taussig v. Railroad Co., 186 Mo. 281; May v. Crawford, 150 Mo. 1. c. 525; Hayward v. Smith, 187 Mo. 1. c. 476; Brummell v. Harris, 162 Mo. 1. c. 402; Sanford v. Herron, 161 Mo. 176, 186; Gracey v. City of St. Louis, 221 Mo. 1.] Counsel for appellants do not question the correctness of the rule just announced, but insist that it has a well known exception, namely, that a judgment Howell v. Sherwood. in an ejectment suit is not a bar to a second suit of like character. Narrowly speaking, that is true, but as was said by this court in Brummell v. Harris, supra, in ejectment suits, as in all others, "the decision of this court on former appeal was the law of the case upon the trial anew in the circuit court, so far as the facts presented were the same," citing Hennessy v. Brewing Co., 145 Mo. 104; May v. Crawford, supra, and Bealey v. Smith, 158 Mo. l. c. 522. And this court, in the case of Sanford v. Herron, supra, in discussing the same question used this language: "This last case correctly defines the effect of a judgment in ejectment. It is res adjudicata as to parties thereto and the matter adjudicated upon until set aside or reversed, or its legal effect destroyed by the result of another action of ejectment for the same land by the parties or their heirs who were defendants therein. While it does not prevent a defendant from yielding possession and bringing another action in ejectment to try the title, yet until he does so, he and his privies are bound thereby. "What, then, was the effect of the judgment of December 13, 1883, upon the possession of J. V. Hilton, asserted through the occupancy of Curry et al., the defendants in that judgment? We answer that, from the date of that judgment and during its life, the said defendants were conclusively estopped from recognizing Hilton as their landlord, or continuing his possession by any act of theirs, in opposition to the rights of Dr. Rose, the plaintiff therein. Unless this is so, it is idle to say that a judgment of a court of competent jurisdiction has any binding force upon the parties thereto. "While that judgment did not bar an action of ejectment in favor of Oliver, who purchased from Hilton the next day after the judgment, upon no sound principle of law can it be asserted that Oliver's quit Howell v. Sherwood. claim deed transferred to him the possession which had been adjudged to Dr. Rose, nor could the defendants therein whose possession had been adjudged tortious by the court, by a surreptitious payment of rent, put Oliver in possession, as it is well settled that a judgment in ejectment binds not only those against whom it is rendered, but all others who come in under them. Nor is there any legal evidence that they attorned or attempted to attorn to Oliver. "Within the contemplation of law, whatever rights Oliver may have had to bring his own action of ejectment, from the date of that judgment, Curry et al., the defendants in the ejectment, were estopped from denying they held under Dr. Rose, and their possession, as between him and them, was his possession, and this continued up to the time they attorned to Dr. Rose, which they were authorized by our statute to do. As is said in Prior v. Scott, 87 Mo. 309, 'Where the prior possessor has been turned out by an opposing claimant in judicial proceedings, all presumptions in his favor, growing out of said prior possession, if not terminated, are at least shifted in favor of his successful opponent.' "It results, then, that upon the admitted state of facts shown by this record, whatever possession those under whom plaintiff claims, held through the defendants in that ejectment, passed to Dr. Rose by his recovery in that case, and it has remained in him and his heirs continuously since the twelfth of December, 1883, the plaintiffs and those under whom he claims. have been ousted by an adverse possession for more than ten years and the court erred in not giving defendants' first instruction." What is meant by the exception before mentioned, namely, that a judgment in an ejectment suit is no bar to another of like character, is that the judgment is no broader than the particular facts adjudicated therein, and that all other matters and things which Howell v. Sherwood. were or might have been adjudicated (whether embraced in the pleadings or not), but which were not, may be the subject of further litigation between the same parties. Ejectment is unlike all other actions in that regard. In all other suits the cause of action cannot be split up, but all matters and things which could have been litigated are settled as effectually as if they had been stated in the petition; and likewise in all such actions, all matters of defense which were or might have been interposed, are also precluded by the judg ment rendered. But in ejectment suits, as before stated, the judgment is conclusive only as to the parties thereto and of the particular matters adjudicated therein. [See authorities before cited.] If that was not the law, and should we affirm the judgment in this case, there would be no law which would prevent the defendant, the appellant here, from bringing another suit based upon the same facts, against the plaintiffs, the respondents here; and should the latter be defeated in that action, then they might turn around and bring another against the former, and so on to the end of time. That is not the law. but the rule is as previously stated, a judgment in ejectment "is res adjudicata as to the parties thereto and the matter adjudicated.” Now what were the matters adjudicated upon the former appeal? That question can be best answered by a brief quotation from the opinion delivered upon the former appeal, which is reported in the 213 Mo. 565. At page 574, this court used the following language: "The finding of facts shows that Charles Carleton was the common source of title, and that the plaintiffs claim through him by virtue of various mesne conveyances. "On January 30, 1861, a judgment was rendered in the circuit court of Greene county in favor of Peter Howell v. Sherwood. Hayden and Pollock Wilson, plaintiffs, against George A. Taylor, defendant for the sum of $922.81 debt, and $64.35 costs. An execution was issued upon that judgment on February 14, 1861, and said Carleton was served as garnishee thereunder. On February 10, 1863, a final judgment by default was rendered against the garnishee for the sum of $682. An execution was issued upon that judgment and levied upon the property in controversy, and on February 2, 1864, it was, by the sheriff, sold to George W. Jameson for the sum of sixty dollars; and the sheriff executed and delivered to him a proper statutory deed. Defendant assails the validity of that deed, for the reason that the circuit court of Greene county acquired no jurisdiction of the person of Charles Carleton, nor of the subjectmatter of the suit involved in said garnishment proceedings. The basis of this contention is predicated upon the alleged insufficiency of the service of the garnishment upon Carleton. "The return of the sheriff was made upon the execution issued on the judgment in favor of Hayden and Wilson against Taylor, and was in the following words: 'Executed the within writ by summoning Charles Carleton as garnishee.'' The opinion after setting out the statutes governing such proceedings, continues as follows: "By reading the return of the sheriff, as above quoted, it will be seen that it did not, as found by the trial court and as required by the statute, inform Carleton when and where he was to appear and answer the interrogatories mentioned in the statute; nor did said return contain a recital that the sheriff declared to Carleton that he seized or attached in his hands all debts, moneys and credits due or owing by him to said George A. Taylor, the defendant in the execution. "Those requirements of the statute are jurisdictional and mandatory, and the omission of the sheriff |