#### Ryan, Appellant, vs. Malone, Respondent.

*December 18, 1907*

January *8, 1908.*

*Judgments: Oonclusiveness: Persons concluded.*

*M.*gave his note to L. under an oral agreement, made at the time of its execution, that the note should not he deemed delivered and become operative until L. had complied with named conditions. L., without compliance with such conditions, indorsed the note to an innocent purchaser, afterwards paid a judgment which the indorsee obtained thereon against L. and M., and took an assignment of the judgment in the name of R. Thereafter, execution having been issued on such judgment against *294tlie property of M., the latter filed a motion, for the recall of the execution and made R. a party. R. appeared and opposed the motion, and, on appeal to the supreme court, M. was awarded the relief claimed. Subsequently R. commenced the instant action against M., who pleaded the bar of the adjudicar tion of the supreme court. *Held,,*that R. was conclusively bound by the adjudication of the supreme court, and the effect of that adjudication was not avoided by the fact that in the former action the innocent purchaser was the party plaintiff and L. and M. the parties defendant.

Appeal from a judgment of tbe circuit court for Rock county: Geoboe Geimm:, Circuit Judge.

*Affirmed.*

Tbe appeal is from a judgment given in an action brought by tbe plaintiff upon a promissory note as transferee of one A. Lorenze. Tbe latter was payee in tbe note. Tbe respondent was maker. Lorenze indorsed tbe note to one Snyder, wbo recovered judgment tbereon against tbe maker and in-dorser. Tbe indorser paid this judgment and it was assigned to bim. Having lost tbe assignment tbe indorser procured another assignment of tbe judgment to be made to appellant, Rycm> wbicb bore date September 28, 1903, and on tbis day execution was issued out of tbe circuit court for Rock county upon tbe judgment against tbe property of respondent, *Malone.*Respondent filed a petition in said circuit court setting forth cause, and moved tbat tbe execution be recalled and tbat tbe transcript of judgment on wbicb tbe same issued be stricken from tbe files, and tbat tbe plaintiff therein (Snyder) and bis assignee *(Ryan)',*and their agents and servants, be restrained from interfering with petitioner’s property by virtue of said execution. Tbis motion was opposed by the appellant, Ryan, and tbe circuit court denied tbe prayer of tbe petition. From tbe order tbereon tbe respondent appealed to this court, and tbe decision of tbis court upon tbat appeal will be found in *Snyder v.*Malone, 124 Wis. 114, 102 N. W. 354, where tbe facts and claims upon wbicb tbe respondent bases bis petition are stated, and where tbe order *295of the circuit court for Rock county was reversed and the cause remanded -with directions to award respondent the relief claimed. The circuit court on or about April 1, 1905, made an order conforming to the mandate of this court. The appellant, *By an,*claiming as indorsee or assignee, of said note, then began an action against the respondent upon said note, to which the respondent, among other defenses, pleaded in bar the adjudication of the supreme court above referred to and that of the circuit court made pursuant thereunto. The circuit court upheld said plea in bar and rendered the judgment in favor of the respondent from which this appeal is taken.

*0. A. Oestreich,*for the appellant.

*J. J. Cunningham,*for the respondent.

Among other references the appellant cited *Dick v. Webster,*6 Wis. 481; *Lawrence v. Milwaukee,*45 Wis. 306; *Wolf River L. Go. v. Brown,*88 Wis. 638, 60 N. W. 996; *Van Valkenburgh v. Milwaukee,*43 Wis. 574; *Bosenow v. Gardner,*99 Wis. 358, 74 IST. W. 982; *Lamontagne v. T.*W. *Harvey L. Go.*84 Wis. 331, 54 N. W. 583; *Fulton v. Ponu-eroy,*111 Wis. 663, 87 N. W. 831.

Among other references the respondent cited *Snyder v. Malone,*124 Wis. 114, 102 N. W. 354; 1 Van Eleet, Eormer Adj. 190, 402; *Barney v. Babcock's Estate,*115 Wis. 409, 91 1ST. W. 982; *Trapp v. New Birdsall Go.*109 Wis. 543, 85 N. W. 478; *Cole v. Getzinger,*96 Wis. 559, 71 N. W. 75; *BobeH's v. Moody,*107 Wis. 245, 83 1ST. W. 307; 21 Am. & Eng. Ency. of Law (1st ed.) 139, 140.

Timlin, J.

*Edward H. Byan*was a party to the proceeding brought by the respondent by petition and which reached this court and is reported in 124 Wis. 114, 102 IST. W. 354. He was mentioned in the petition as one of the persons against whom relief was sought, and the order to show cause required that he be served, and he appeared and *296filed an affidavit in answer to tbe petition. In *Snyder v. Malone, supra,*it was determined that tbe note in question was originally given by *Malone*to Lorenze under an oral agreement, made at tbe time of its execution, to tbe effect that tbe note should not be deemed delivered and become operative until Lorenze should procure and submit to *Malone*a life insurance policy for bis acceptance, and if tbe policy was not accepted this note was to be returned to *Malone.*No such policy was submitted to and accepted by *Malone,*but Lorenze indorsed tbe note to an innocent purchaser and afterward paid tbe judgment which tbe innocent purchaser, Snyder, obtained thereon against Lorenze and *Malone,*and took an assignment of such judgment in tbe name of the appellant, *Ryan.*Tbe legal effect of Lorenze’s conduct in wrongfully transferring tbe note and permitting it to go to judgment against himself and *Malone*rendered him in law tbe principal judgment debtor and primarily liable as between him and *Malone,*and bis payment of it to Snyder operated to satisfy and extinguish it notwithstanding the assignment.

This determination was made upon tbe record presented to this court, which covered such claim on tbe part of *Malone.*It was made, as we have seen, in a proceeding to which tbe appellant, *Ryan,*was a party, and upon a vital point in tbe controversy. It is consequently conclusive against tbe appellant in tbe instant case. Appellant seeks to avoid tbe effect of this adjudication by claiming that *Ryan*was not a party to tbe proceeding to recall tbe execution, etc. He basés this upon tbe narrow proposition that in tbe judgment and execution Snyder was party plaintiff and Lorenze and *Malone*were parties defendant; but, as we have seen, *Ryan,*as assignee of tbe judgment, was also made a party by tbe petition and order to show cause. What tbe effect of that judgment would have been bad *Ryan*not been a party we need not determine, although it may be proper to remind tbe appellant that privies as well as parties are bound by judg-*297meats aud that tbe assignee or transferee of a demand is in privity with bis assignor or transferrer.

*By the Gourt.*— Tbe judgment of tbe circuit court is affirmed.