#### Allen McArthur, Appellant, v. Charles J. Schultz.

Kes Judicata: practice. Where there is a reversal for defendant, because plaintiff was allowed to withdraw part of his claim without prejudice, and remand made to enable defendant to get a determination upon said withdrawn parts of the plaintiff’s claim, defendant cannot allege, upon second trial, that said claims are *res judicata.*

*Appeal from Linn District Court.*— Hon. J. H. Preston, Judge.

Monday, December 17, 1894.

Action for breach of covenants in a warranty deed. There was a judgment for the defendant, from which plaintiff *appeals.*

Reversed.

*J. C. Leonard*for appellant.

*D. E. Voris*for appellee.

Eobinson, J.

In October, 1887, the defendant conveyed to the plaintiff a tract of land, which at the time was incumbered by two mortgages, duly recorded, given to secure promissory notes to the amount of about three hundred dollars. The deed of conveyance covenanted that the land was free from incumbrance, and that the grantor would defend the title thereto-against the lawful claims of all persons. This action was brought on those covenants. The original petition set out the conveyance and covenants, alleged a breach of the covenants, and demanded judgment against the defendant 'for the sum of three hundred dollars, with interest and costs. An answer which denied liability, and contained a counterclaim which alleged *33grounds for equitable relief in favor of the defendant, was filed, and on his motion the cause was transferred to the equity docket A reply was filed, and the cause was submitted for final determination. On the twenty-first day of November, 1888, action was had, as shown by the record of the court, as follows: “Plaintiff asks and has leave to withdraw all his claims, excepting ten dollars interest paid on incumbrance, without prejudice; and finding for plaintiff, judgment for ten dollars and costs, — to all of-which defendant excepts.” From that judgment the defendant appealed, and the judgment was reversed. See *McArthur v. Schultz,*78 Iowa, 365, 43 N. W. Rep. 223. The cause was remanded for further proceedings in harmony with the opinion. The plaintiff then filed an amended petition, which appears to have been a substitute for the original one, in which he set out the deed of conveyance, the incumbrances which were on the land when the deed was executed, and alleged that to protect his title he had been compelled to pay the sum of three hundred and thirty-eight dollars and ninety-three cents, with interest, to satisfy the incumbrances. Judgment for that amount was asked. The defendant filed an answer which contained a general denial, and alleged that all the matters set out in the amended petition were fully adjudicated by the District Court on the twenty-first day of November, 1888, and that the judgment so rendered was final. A reply to this answer was also filed, the cause was submitted on an agreed statement of facts, and the District Court rendered judgment in favor of the defendant for costs.

The only question we are required to determine is whether the plea of former adjudication is sustained. If it is, the judgment of the District Court is to be affirmed, and, if it is not, judgment is to be rendered in favor of the plaintiff for the amount of the - incum-*34brances not paid by tbe defendant On tbe former appeal tbe only question in regard to tbe merits of tbe case wbicb was presented to tbis court was whether tbe plaintiff bad a right to dismiss a part of bis claim without prejudice after a submission of tbe case on its merits, and before a final determination by tbe court, and we answered tbe question in tbe negative. Tbe plaintiff bad obtained all tbe relief be demanded and did not appeal. Tbe complaint of tbe defendant was that a part of tbe claim made by tbe plaintiff bad been improperly withdrawn, and bis theory on tbe appeal was that there bad been no adjudication of tbe part of tbe claim now in controversy, and tbe appeal was taken for tbe purpose of securing such an adjudication. That fact was fully recognized in tbe opinion of this court, wbicb stated that, according to tbe abstract then presented, there bad been no decision on tbe merits of tbe claim of tbe plaintiff, excepting as to a part wbicb amounted to ten dollars., and tbe case was remanded “for final decree upon tbe merits of tbe cause.” As it was tbe purpose of tbe appeal to secure a determination of all tbe claims wbicb bad been submitted to tbe District Court, and tbis court held that tbe defendant was entitled to such a determination, and reversed tbe decree and remanded tbe cause to enable him to obtain it, there is no ground whatever for tbe claim now made by tbe defendant that there was in fact a decree on tbe claims withdrawn, wbicb must be treated as final. Tbe judgment of tbe District Court is *reversed.*