Coen and Another v. Funk.

of the original judgment, on the former complaint for review, was procured by the false and fraudulent evidence given on the trial in that case by said Poole. The complaint further alleges that an execution issued on said judgment had been placed in the hands of the sheriff of said county, who threatened to levy the same on the property of Isaac M. Coen, one of the appellants, and that under duress of said execution he had paid to the sheriff' thereon the sum of two hundred dollars. It is also alleged that said corn contracts were never in the possession of the appellants, and at the time of the original suit, and of the trial on the former complaint for review, they were lost, and could not be found, though diligent search and inquiry were made for them; that they had been found since the last named trial, and by them the errors in said notes, and the falsity of the statements of Poole at the date of the execution of the notes, and on the trial of the issue on the former complaint for review, could be established.

The cause was removed by change of venue a second time to the Warren Court of Common Pleas, and thence to the Warren Circuit Court

The complaint is divided into three paragraphs by numbers. The part relating more particularly to the original judgment is called the first paragraph; while so much of it as states the causes for a review of the judgment rendered on the former complaint for a review, or for a new trial in that case, is called the second paragraph, and that part relating to the alleged payment of $200 by one of the appellants, under duress of execution, is numbered as the third paragraph.

Separate demurrers were filed to each of the paragraphs, as thus numbered, which the court sustained to the second, and overruled to the first and third. The cast of the complaint indicates that it was designed (as it is in fact) as a single paragraph. The whole relates to a single subject, the original judgment rendered on the notes, of which a re

Coen and Another v. Funk.

view is sought. The complaint admits that the appellants had filed a former complaint for a review of the same judgment, on the final hearing of which, judgment was rendered against them, and in affirmance of the original judg ment; and also admits the subsequent payment by one of the appellants of two hundred dollars on the judgment, but alleges the payment was made under duress of execution, and attempts to avoid the effect of the judgment on the first review by allegations of fraud.

Issues were formed on the first and third paragraphs, and on the trial a final judgment was rendered against the appellants.

The record not only presents a lamentable state of confusion, but is in many other respects a most extraordinary one. But a small portion of its space is given to the evidence in the case, yet it contains nearly four hundred pages of manuscript. After the first change of venue, the case in its frequent changes to and fro, from court to court and from county to county, seems to have become a wanderer, and at each change became involved in new intricacies, until it is claimed by the counsel for the appellee that it ceased to exist, though, phoenix like, a successor instantly sprang from its ashes, and yet of so recent date, that it too must yield to the iron rule of the statute of limitations. One fact however is patent in almost every page of the record: that the contest between counsel in the case, not only exhibited a proper zeal in the interest of their respective clients, but evolved unusual, if not new, points in professional skill.

The appellants' counsel has presented us with a brief of one hundred and fourteen printed pages, exhibiting patience, labor and research, in which a multiplicity of questions are discussed. But we find ourselves relieved from the necessity of entering upon so broad a field of labor, by the fact that we are met with a question at the very threshold which, in our opinion, must dispose of the case.

Coen and Another v. Funk.

A complaint for review of a judgment is in the nature of a writ of error, and a second complaint to review the same judgment, where the first one, on final hearing, has resulted in a judgment of affirmance, will not be allowed. There should be an end to litigation somewhere, a rule the necessity of which is illustrated by the case at bar, and it could scarcely be so, if new suits may be brought to review the same judgment as often as a party may desire, or may suppose that a new cause therefor has been discovered. In Story's Eq. Pl., § 418, p. 462, it is said that where a decree has been reversed on the first bill of review, another bill of review may be brought on the decree of reversal, but if a demurrer has been allowed to a bill of review, a second bill of review upon the same ground will not be allowed. The same rule is stated in Mitford's Chancery Pleading 88. The authorities on the question are not numerous, for the reason, doubtless, that it has but seldom arisen in the courts. But in Strader v. The Heirs of Byrd et al., 7 Ohio R., p. 184, the question was very fully examined, and it was held by the court that "where the original decree has been affirmed on bill of review, a subsequent bill of review cannot be allowed." HITCHCOCK, J., who delivered the opinion of the court, after reviewing the authorities, stated the rule deduced therefrom as follows: "When a demurrer to a bill of review has been sustained or allowed, in other words, where according to our practice the bill has been dismissed, and the original decree thereby affirmed, no subsequent bill of review will lie; but where the original decree has been reversed, this decree of reversal may be reviewed. This rule of practice is based upon sound reason. Where there have been two concurrent decrees, as in the case of the demurrer allowed, it is time that the litigation should be ended, but where the original decree has been reversed, there the matter of equity may still be considered as doubtful." This decision is referred to in a note in Mitford's Ch. Pl. 88, with approbation. The rule announced in the case, we think, is the correct one, and is decisive of the case at bar, and as the

Kent and Another v. The Liverpool and London Insurance Company

judgment below was for the defendant on the final hearing, as it should have been upon the demurrer to the complaint, for the reason above stated, the appellants have no cause to complain, and the judgment must be affirmed.

The judgment is affirmed, with costs.
GREGORY, C. J., was absent.

J. Buchanan, for appellants.

M. M. Milford and S. A. Huff, for appellee.

KENT and Another v. THE LIVERPOOL AND LONDON INSURANCE COMPANY.

INSURANCE.-MERCHANDISE.-The term "merchandise," in a policy of insurance against loss, &c., by fire on grain and other merchandise in each of two warehouses, which were kept by the assured, who were grain merchants, for the purpose of receiving and storing grain, was held not to include a platform scale, bedded in the floor of one of the warehouses, nor belting, nor a corn sheller, nor a beam-scale, which things had been dispensed with in the business, but which had not been offered for sale; nor tools, implements or articles of property purchased for use in the warehouses, as being necessary or convenient in the business, and which were used as occasion required.

APPEAL from the Tippecanoe Common Pleas.

ELLIOTT, J.-Suit by the appellant against the insurance company on a policy of insurance of $1,500, against loss or damage by fire on "grain and other merchandise, hazardous and not hazardous, contained in each of their two warehouses," &c., "on the Toledo and Wabash R. R., at Marshfield station, Indiana." The warehouses and their contents were consumed by fire.

Answer in denial of the complaint. by the court; finding for the defendant.

The issue was tried

Motion for a new

Kent and Another v. The Liverpool and London Insurance Company.

trial, because the finding was contrary to the law and evidence in the case, overruled. The plaintiffs appeal.

The only question presented in the case by the record and assignment of errors, is whether certain articles of property named in the schedule, or bill of particulars, filed with the complaint, under the state of facts shown by the evidence, were covered by the term "other merchandise," used in the policy?

The following are the items referred to:

1. 1 Fairbanks' platform scale............

$175

25

100

200

75

40

87

28

25

10

15

8

The evidence is all in the record. The only evidence bearing on the question under consideration was that given by Kent, one of the plaintiffs, who testified, in substance, as follows: That the first eight articles embraced in the schedule had been used in the warehouse for the purpose of operating it; they were tools, implements and fixtures used in the warehouse business, but most of them had been dispensed with, owing to alterations in the mode of operating the warehouse. Plaintiffs had dispensed with most of them before the policy issued, but he could not tell which they The belting, one of the corn shellers and beam scale were the only articles recollected by the witness that had been dispensed with. A set of blocks, the 13th item, did. not belong to the warehouse, they were used for raising buildings and were in the warehouse for safe keeping. The wheelbarrow and trucks did not belong to the warehouse,

were.