Parks

— This is an action to foreclose a mortgage. There was a judgment in favor of the defendants in the court below, and a new trial was denied. The plaintiff appeals.

The only question in the case in this court is, whether there has been a prior adjudication, between the parties to this appeal, of the questions involved in this suit.

The respondents in this action brought a suit against the appellant and the parties who executed to him the mortgage sued on herein, to quiet title to the property in controversy. In the complaint in that case it was alleged that the respondents were the owners of the land, that the appellant’s mortgagors had no title thereto, but were asserting ownership therein adverse to the respondents; that so claiming to own the land, they had executed the mortgage now in suit to the appellant, but that said mortgage was invalid. In that action the appellant demurred to the complaint, whereupon the respondents voluntarily dismissed the action as to him. His claim to the lands, either as mortgagee of the claimants, or otherwise, was not set up or litigated, and the dismissal was not upon any agreement or compromise of the case, as to him, so far as the record in…