Williams on the Clay county lands), which sum was adjudged to be a valid lien upon the Kidder county land.

Judgment was entered April 9, 1917. The correctness thereof has never been questioned either by motion in the trial court or on appeal. The defendants Moore did not, however, see fit to surrender the land to the plaintiff, Williams. On the contrary, they retained possession thereof and farmed it during the seasons of 1917 and 1918. The plaintiff thereupon instituted this action to eject them, and to recover the value of the use and occupation. The defendants by way of counterclaim averred that they had paid certain taxes, and interest and principal of mortgages, against the land. The plaintiff interposed a reply to the counterclaim wherein he asserted that the matters set out in said counterclaim had been fully and finally settled and adjudicated by the judgment entered in the former action. The case was tried upon the issues thus formulated. The trial court allowed plaintiff to recover the value of the use and occupation of the premises during the time subsequent to the rendition of the judgment in the former action. It also permitted defendants to recover for tax payments made subsequent to the rendition of such judgment, but disallowed all payments made prior to that time on the ground that the right to recover such payments was involved in the former action, and that the judgment therein was conclusive upon that question.

The only question presented on this appeal is whether the trial court ruled correctly in holding that the judgment in the former action precludes a recovery upon the counterclaim. No question is raised as to the amount allowed for the use and occupation of the premises during the farming seasons of 1917 and 1918. Nor is any question raised as to the correctness of the judgment in so far as it awards plaintiff the possession of the premises.

The defendants contend that the former judgment is not a bar. They contend that the claims which constitute the basis of their counterclaim were not passed upon in that case. In support of that contention they call attention to the letter of the trial judge written January 24, 1917, to one of the attorneys for the defendants in the former action, wherein the trial judge said: "You will observe that I have said nothing with regard to the rights of E. J. Moore and C. A. Moore,

inasmuch as no evidence was offered as to whether they had ever paid any encumbrances or taxes upon any of the said lands. If, however, they have paid anything and counsel for the parties desire that some finding be made with reference to reimbursement, I am willing to make such a finding upon the stipulation of the parties as to what is due them." The findings were dated on that day, but were not filed until April 6, 1917.

We are of the opinion that the trial court was correct in holding that the payments made by the defendants for taxes and encumbrances against the land in controversy, which payments might have been proved and recovered in the former suit, cannot be made the basis of a counterclaim in this case.

We do not have before us the pleadings in the former action, but we do have the findings of fact and conclusions of law and the judgment therein. We also have the order providing for an accounting. It must be assumed that the pleadings presented the issues covered by the findings and the judgment. From the findings and judgment it is apparent that the purpose of the action was to obtain a full and final determination of all rights and interests of the several parties in and to the lands in controversy. The obvious and avowed purpose of the accounting was to obtain an adjustment in that action of all claims then existing growing out of the transactions in controversy, and thus obviate all necessity of any further litigation.

Nor do we see wherein the letter of the trial judge supports the contentions of the defendants—leaving the question of admissibility thereof wholly on one side. The letter clearly shows that the trial judge was of the opinion that the claims which the defendants attempt to assert as a counterclaim in this suit were properly involved and determinable in that action. The trial judge, of course, did not know whether such claims existed, and could make no finding with respect thereto in absence of evidence. He specifically called attention to the fact that no evidence had been adduced tending to establish such claims, and that for that reason he had made no finding with respect thereto. Similar claims existing in favor of the Daniels-Jones Company and the Harvey T. Daniels Investment Company were covered by the find

ings and judgment in the case. Upon the record presented we are of the opinion that the claims which the defendants seek to assert by way of counterclaim in this case were properly provable, and are concluded by the judgment in the former action. 15 R. C. L. pp. 976, 977. The defendants could not avoid the effect of the judgment rendered in that case merely by withholding proof of such claims. Marshall v. Bryant Electric Co. 107 C. C. A. 599, 185 Fed. 499; Smith v. Cretors, 181 Iowa, 189, 164 N. W. 338; 23 Cyc. 1312, 1313. Nor does it appear (except from the trial judge's letter) that no proof was adduced. The findings purport to pass upon the entire controversy. There is no intimation that any claims were withdrawn, or that any right was left undetermined.

The judgment appealed from must be affirmed. It is so ordered.

BIRDZELL, ROBINSON, and BRONSON, JJ., concur.

GRACE, J., concurs in the result.

INDEX

ACKNOWLEDGMENT.

1. In an action to foreclose a mortgage it is held: That the mortgage was
not entitled to be recorded for the reason that the certificate of ac-
knowledgment did not show that the mortgage was executed by a person
authorized to execute it for the corporation, as required by the laws of
this state. First Nat. Bank v. Casselton Realty & Invest. Co. 353.

APPEAL AND ERROR.

1. An appeal from an order appointing a receiver is not triable anew in the
Supreme Court. Dale v. Duffy, 33.

2. Mere verbal inaccuracies or technical defects in instructions, which are not
likely to have misled the jury to appellant's prejudice, constitute no
ground for reversal. Munster v. Stoddard, 105.

3. Where there is any substantial evidence to support a verdict, the granting
or denying of a new trial on the ground of insufficiency of the evidence
rests in the sound, judicial discretion of the trial court, and its ruling
will not be disturbed unless an abuse of such discretion is clearly shown.
Munster v. Stoddard, 105.

4. Where an action properly triable under the Newman Act is tried by the
court as a law case, with the consent of the respondent, this court will
consider and review the same as a law case, where in so doing it is with-
out prejudice to the rights of the appellant. Jensen v. Sawyer State
Bank, 225.

5. Defendant moves the supreme court to vacate its decision entered in this
cause on March 6, 1914. For reasons stated in the opinion the motions
denied. Patterson Land Co. v. Lynn, 251,

APPEARANCE.

1. An appearance for the sole purpose of objecting to the jurisdiction of the
court over a foreign corporation on the ground that the person upon whom
service has been made was not authorized to receive such service, is a
special appearance only, and does not waive the want of service of process.
Kluver v. Middlewest Grain Co. 210.

651

ASSAULT AND BATTERY.

1. In an action for indecent assault, where the plaintiff, the mother of two
little children, was employed by the defendant, a bachelor fifty-nine years
old, as his housekeeper, and where, during a period of two weeks employ-
ment, the defendant attempted at various times to take indecent liberties
with the plaintiff, finally culminating in a bolder attempt, which com-
pelled the plaintiff to leave the defendant's employ, to protect her virtue
and integrity, all of which occasioned to her suffering, humiliation, and
disgrace, it is held that a verdict of $2,500 is not so excessive as to dis-
close the result of passion and prejudice of the jury. Leiferman v. Daniels,
76.

ATTORNEY GENERAL.

1. In an original proceeding, where the attorney general has made a motion
to strike the return and answer of the workmen's compensation bureau, made
and filed by one of the members thereof, upon the ground that such attor-
ney general is the sole legal adviser and person entitled to appear by law
for such bureau, and that, further, such answer and return was filed with-
out his knowledge or consent, it is held that any board or department of the
state government have the right to personally appear in their own defense
before this court, and that the attorney general, although he is by statute
the legal adviser of the departments of the state government and entitled
to represent them in actions, sustains, nevertheless, in such actions a
relation similar to that of attorney and client, and he may not overrule
or entirely disregard rights of defense or of personal appearance that
such departments may desire to assert. State ex rel. Amerland v. Hagan,
306.

BANKS AND BANKING.

1. Where, in order to raise moneys for banking operations, an arrangement is
made, pursuant to an agreement of the officers and directors of a bank,
to deed certain lands then held by the bank to its cashier, and for the
cashier then to mortgage such lands to secure two notes for $4,500 each,
to be signed by the directors thereof, and where, pursuant to such agree-
ment, such deed, notes, and mortgages are executed and $9,000 secured
thereby through a sale of such notes and mortgages, and where, there-
upon, such proceeds are paid to the bank and credited to its real estate
or loans and discounts account, representing real estate held, and the
lands involved are thereafter treated, in making sales, in raising crops in
payment of taxes, and in rentals thereof, as the lands of the bank, and it
was so understood between all the bank officials and directors, even though,
on the books of the bank, the specific liability therefor is not shown in