vent in his petition rested on the claim that the property was exempt from execution; it could have no other foundation, and the court must have so regarded the issues, for it found that the money was not exempt. The subject matter of the petition. was identical with that in controversy here; the parties were the same and in the same right, and the petition was presented to a court of competent jurisdiction. The fact that defendant here was not sued in his capacity as assignee can make no difference. He held the money in that capacity and defended in that capacity, and the identity of the two actions cannot be destroyed by making him a defendant in the present action in his individual capacity. The identities demanded by the law to make the matter res judicata were fully supplied: Freeman on Judgments, sec. 252. It is familiar law, as well as manifest justice, that a man should not be vexed twice with the same litigation. This rule is not without its exceptions. But when, as here, a question has once been fully litigated and every opportunity given to either party to present his case and to have any supposed errors in the lower court corrected by review in the highest court, it would be an abuse of the rights of a litigant to compel him to enter upon a second trial of the same question. In this case the insolvent presented a formal petition in writing, in the proceeding which he himself had instituted; the assignee answered; the cause was tried upon evidence submitted, documentary and oral; the case was argued upon briefs and submitted for decision; the court made full findings and entered judgment thereon, and no steps were taken to renew the motion to set aside or vacate the judgment or appeal therefrom. This judgment, in our opinion, became an adjudication of the matter in controversy and final as to the facts then litigated: See the subject discussed and the cases cited in Commissioners etc. v. McIntosh, 30 Kan. 234. 558 It becomes immaterial whether the court erred in finding that plaintiff did not reside upon the premises when he filed his declaration of homestead, and it is also immaterial by what right he claimed the proceeds of the grapes as property exempt from execution. Whatever was the basis of his right, the right itself was litigated and the judgment is a bar to the present action. The judgment and order should be affirmed. Haynes, C., and Gray, C., concurred. For the reasons given in the foregoing opinion the judgment and order are affirmed. Garoutte, J., Harrison, J., Van Dyke, J. Hearing in Bank denied. RES JUDICATA.-ORDERS made upon motions, petitions, or rules affecting substantial rights, and from which an appeal lies, are as conclusive upon the issues necessarily decided as are final judgments: Burner v. Hevener, 34 W. Va. 774, 26 Am. St. Rep. 948. For numerous applications of the doctrine of res judicata, see the notes to Hawks v. Evans, 14 Am. St. Rep. 250-252; Gould v. Sternburg, 15 Am. St. Rep. 142-144. RES JUDICATA-HOMESTEAD.-If after the foreclosure of a mortgage the defendant files a claim of homestead, and a verdict is rendered against such claim and the property adjudged subject to execution, the defendant is concluded from asserting any further homestead claim: Cosnahan v. Johnston, 108 Ga. 235, 75 Am. St. Rep. 36. DE JARNATT v. MARQUEZ. [127 California, 558.] NEGOTIABLE INSTRUMENTS.-ATTORNEYS' FEES, provided for in a note in case of suit thereon, are in the nature of special damage. JUSTICE'S COURT-JURISDICTION-VOID JUDGMENT. A justice's court is without jurisdiction of an action upon a note stipulating for attorneys' fees in event of suit when the amount of the principal and attorneys' fees demanded exceed the statutory jurisdictional amount, and the judgment rendered in such action is void. JURISDICTION-APPEAL FROM JUSTICE'S JUDGMENT. If the superior court, upon appeal from a void justice's judgment, has tried the case and rendered judgment exceeding in amount the statutory limit in the justice's court, the supreme court has jurisdiction of an appeal from that judgment, and such appeal cannot be dismissed for want of jurisdiction. APPELLATE PRACTICE--DISMISSAL OF APPEAL.-The fact that the sureties in an undertaking upon appeal have failed to justify is not ground for dismissing the appeal, nor is the fact that one of the attorneys of appellant is a surety upon such undertaking ground for such dismissal. R. Dunnigan and H. L. Dunnigan, for the appellant. H. J. and W. Crawford, for the respondent. 559 HENSHAW, J. This is an application to dismiss defendant's appeal. Plaintiff commenced an action in the jus tice's court to recover upon a promissory note made by defendant in the sum of two hundred and fifty dollars. The instrument provided for the payment of attorneys' fees in the event of suit. In his complaint in the justice's court plaintiff alleged that the sum of one hundred dollars was a reasonable attorney's fee. He asked judgment for the face of the note, with interest, and attorney's fee in the sum of one hundred dollars. Defendant joined issue in the justice's court, and, after trial, appealed to the superior court from the judgment given against him. The appeal was upon questions both of law and fact. After trial de novo in the superior court, judgment was again given for plaintiff for the amount of the note with interest, and for attorneys' fees fixed in the sum of one hundred dollars. From the judgment of the superior court defendant took the appeal to this court which is here sought to be dismissed. Attorneys' fees under a contract such as this are in the nature of special damage: Prescott v. Grady, 91 Cal. 519; Clemens v. Luce, 101 Cal. 432. Plaintiff's demand, therefore, in his action in the justice's court was for two hundred and fifty dollars, the principal sum of the promissory note, and the one hundred dollars pleaded by way of special damage as a reasonable attorney's fee. The justice's court was therefore without jurisdiction and its judgment void: Code Civ. Proc., sec. 112, subd. 1. Whether or not, upon a showing of these facts, the superior 560 court should have declared the judgment of the justice's court void, still as it tried the case and rendered a judgment against defendant for over three hundred dollars, he has the right of appeal to this court from that judgment, even though it be void. The fact that the sureties did not justify upon the three hundred dollar appeal bond is not a ground for dismissal of the appeal: Hill v. Finnigan, 54 Cal. 311; Tompkins v. Montgomery, 116 Cal. 120. Nor is the further fact that one of the attorneys of appellant became a surety upon the undertaking on appeal in violation of a rule of the superior court a ground of dismissal. It is a matter cognizable before that court, to be dealt with as it shall be advised. The motion to dismiss is denied. McFarland, J., Temple, J., Van Dyke, J., Harrison, J., and Garoutte, J., concurred. NEGOTIABLE INSTRUMENTS.-ATTORNEYS FEES stipulated for in a note in case of suit thereon are not in the nature of additional interest, but simply a provision against possible loss or damage of a certain and definite character: See the monographic note to Kittermaster v. Brossard, 55 Am. St. Rep. 441. JURISDICTION AS DETERMINED BY AMOUNT.-The aggre gate sum demanded is the test of jurisdiction: Martin v. Goode, 111 N. C. 288, 32 Am. St. Rep. 799. The amount actually due and for which judgment is demanded is the proper test in determining the limit of jurisdiction. A court having jurisdiction of actions only where the amount in controversy does not exceed three hundred dollars has no jurisdiction of an action on a note for three hundred dollars and interest: Wilson v. Sparkman, 17 Fla. 871, 35 Am. Rep. 110. CASES IN THE SUPREME COURT OB GEORGIA, MCMILLAN v. HARRIS. AUCTIONS-PUFFERS.—If a person having such control of an auction sale that he can, of his own volition, release a bidder from all responsibility for his bid, employs a person upon that kind of an understanding to bid at the sale without disclosing for whom he is bidding, for the purpose of preventing the property from selling at a sacrifice, or for the purpose of making it bring more than its actual value, the bidding under such employment is such a fraud upon the real bidders that the sale may be declared void at their instance. The only way for such person to prevent a sacrifice of the property sold is to fix a minimum price of which public notice is given, or make public the fact that he, either by himself or others, will be a bidder at the sale. AUCTIONS-PUFFERS.-The mere fact that a person is interested in the property to be sold at auction, or in the proceeds of such sale, does not preclude him from either bidding himself or from procuring another to bid openly or secretly, in his behalf, without regard to what the agreement may be with such bidder, if the one employing such bidder has not himself such control of the sale that he could absolutely release the bidder from all responsibility growing out of his having participated in the sale, in that capacity. AUCTIONS JUDICIAL SALES-PUFFING.-A person who is entitled to the proceeds of a judicial sale of land by an executor may engage a third person to bid the property up to a specified price, with an agreement that if it is sold to such bidder, the person who thus employs him will take it off his hands. Denmark, Adams & Freeman, for the plaintiff in error. R. R. Richards, G. W. Owens, and A. C. Wright, for the defendant in error. (93) |