Horton

This is the second appeal in this case. On the first appeal the cause was remanded for a new trial as between the plaintiff and the defendant Jack. The opinion on that appeal will be found in 37 Pac. Rep. 652 , where the facts are fully stated. The second trial resulted in a verdict and judgment for defendant, and plaintiff appeals from the judgment, and from an order denying his motion for a new trial.

It is contended by appellant (and this is the only question which need be considered) that the facts disclosed on the second trial are substantially the same as on the first trial, and that the decision on the former appeal is, therefore, the law of the case, and requires a reversal of the judgment. Respondent claims that the evidence is now substantially different, in that it shows that the debt to pay which the property in controversy was sold, was the debt of the deceased, and not that of Catherine J. Brown; that the executrix had the right to pay that debt from the funds of the estate, although it was not formally presented against the estate, and although such payment was not approved by the probate court; and that the taking of the property to pay that debt did not amount to…