Sabra

The background of this case is disclosed in our opinion on a former appeal 31 F.(2d) 9 . It seems that after the dismissal as to Mrs. K. Sabra and Mary E. Wintermute, which was the subject of that appeal, the cause proceeded against John Sabra, the remaining defendant, and culminated on June 1, 1928, in a judgment against him for $12,926.07, with interest thereon from April 16, 1924, from which no appeal was taken. Upon the going down of our mandate the case was brought on for trial against Mrs. K. Sabra and Mary E. Wintermute, with no change in, or addition to, the original pleadings. Without stating the purpose thereof and though not pleaded, plaintiff introduced the judgment against John Sabra, and thereafter both parties offered oral and documentary evidence. At the close of the testimony, the record recites, plaintiff “moved the court to instruct the jury to return a verdict for the plaintiff for the sum of $7,482.77 plus the amount of expense incurred as' shown by the proof and the pleading, upon the ground and for the reason that the amount asked for in the case was res adjudicata” by virtue of the John Sabra judgment, “and upon the ground that no defense to the cause had…