[Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 389, 395; Dec. Dig. § 176.*] 6. INJUNCTION (§ 176*)-RESTRAINING ORDER -MATTERS ADJUDICATED - RECORD EVIDENCE. Where the court issued without notice a temporary order restraining the payee of a note from transferring it, and subsequently dissolved it and awarded costs to the payee after the maturity of the note, and after issues joined on failure of consideration and thereafter transferred the cause on change of venue to another county, the court merely determined the question of the right of the maker to a temporary injunction, and did not determine the liability of the maker on the note, which could be subsequently litigated. ownership of the note and demanding a recov- [ warranted to do; that said Paul and Poorery thereon, and a judgment dissolving the re- man, if not restrained by the court, would straining order, granted without notice, and awarding costs to the payee, is not necessarily transfer said notes to an innocent purchaser a judgment on the merits. for value in order to prevent them from making defense thereto; that they could not give notice of the hearing for a temporary restraining order, because said Paul and Poorman would transfer said notes before such notice could be given. After the issuance of a temporary restraining order without notice, appellees filed a second and further paragraph of complaint, in which substantially the same facts are alleged as in the first paragraph, and in addition thereto special damages are alleged. Issues were joined on said paragraphs by answer in general denial by both appellants and a separate answer of denial by appellant Paul, who also filed a cross-complaint, in which he avers ownership of said notes and prays a recovery thereon with attorney's fees. On January 14, 1908, appellees answered said cross-complaint by a plea of warranty and failure of consideration, which answer contains substantially the same facts as those set up in the second paragraph of complaint, and in addition thereto shows that said Paul was notified of the defective condition of said machine, and knew of its defective condition and refused [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 389, 395; Dec. Dig. § 176.*] 7. JUDGMENT (§ 713*) CONCLUSIVENESS MATTERS CONCLUDED. A judgment is only presumptively conclusive as a former adjudication when it appears that the suit and issues were of such a character that the judgment could not have been rendered without deciding the particular questions subsequently presented. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1063, 1066, 1099, 1234-1237, 1239, 1241, 1247; Dec. Dig. § 713.*] Appeal from Circuit Court, Wabash Coun- to take it back or to replace it. Prayer that ty; A. H. Plummer, Judge. Action by Frank G. Barnbrook and others against William S. Paul and others. From a judgment for plaintiffs, certain of the defendants appeal. Affirmed. C. W. Watkins and C. A. Butler, both of Huntington, and D. F. Brooks, of Wabash, for appellants. Fred H. Bowers and Milo N. Feightner, both of Huntington, for appellees. defendants take nothing by their cross-complaint, and that said notes be canceled, and that plaintiff Barnbrook have judgment for his costs and $1,000 damages. The defendants filed reply in general denial to said answers. The record entry of March 24, 1908, contains the following: "Comes the parties, by counsel, and the issues being joined this cause is now submitted to the court for trial, without the intervention of a jury, on questions of injunction and cancellation of notes described in plaintiff's complaint.” The record under date of April 21, 1908, shows the following entry in the proceedings in said cause: "The court, having heretofore taken this cause under advisement, now finds for the defendants and that the restraining order herein would be dissolved. It is therefore considered and adjudged by the court that the restraining order heretofore issued in the cause be and the same is hereby dissolved" FELT, C. J. On September 4, 1905, appellees filed their verified complaint in the Huntington circuit court against appellants, William S. Paul and Charles Poorman, and the Citizens' State Bank, asking that said Paul and Poorman be restrained from selling or transferring certain promissory notes executed by appellees to said Paul and Poorman until notice of a hearing on the application for a restraining order could be given, and that upon such hearing a temporary injunction be issued, and that upon final trial said notes be ordered canceled. The averments of the complaint, as far as material to the questions presented, show that appellees, Barnbrook, as principal, and Peigh and Trainer, as sureties, executed certain negotiable promissory notes, one to appellant Paul, for $50, due October 1, 1905, and one to appellant Poorman for $175, due October 1, 1906, in payment for a certain threshing machine; that said machine was warranted to do good work, and the purchasers relied on said representations, which were false; that said machine would not do the work for which it was purchased and which it was and that the defendants recover costs. After the rendition of the aforesaid judgment a change of venue was taken to the Wabash circuit court, where defendant Paul filed a separate reply in general denial to appellee's answer to his cross-complaint. Upon the issues thus formed a jury trial was had, resulting in a verdict in favor of appellees. Appellant Paul filed his motion for a new trial, which was granted. On February 23, 1911, appellee Peigh, filed a separate answer to the cross-complaint of said Paul, setting up his suretyship on said notes, and alleging that he was induced to sign them by fraudulent representations of said Paul, which rep resentations were substantially the same as cuit court. The theory of the complaint on those contained in the original complaint. which the restraining order was issued was He also averred that by reason of the worth- that the notes were not due, and that the lessness of said machine appellant, Barn- payees, if not restrained, would transfer brook, was unable to pay the notes and each them before maturity to innocent purchasers of them when they severally came due, and for value, and thereby deprive the makers of prayed for judgment against cross-complain- their defense of warranty and failure of conant for his costs. On the same day appellant sideration. If as alleged in the complaint Paul filed an amended reply to the answer the notes were not due when the suit was beof all the defendants to the cross-complaint gun and the temporary restraining order oband to the separate answer of said Peigh, in tained, and the payees were in fact about to which he averred former adjudication of all transfer them to cut off a meritorious dematters set up in the answers to his cross- fense, but when the court tried the issue to complaint. Upon the issues so formed the determine whether the temporary restraining cause was tried by a jury, which found for order should be dissolved or made permanent, appellees, and returned with their verdict the notes were past due and there was no answers to certain interrogatories. Over ap- longer any possibility of the makers of the pellant Paul's motion for a new trial judg- notes being deprived of such defense by their ment was rendered on the verdict as follows: transfer, the plaintiff would be entitled to "It is, therefore, considered and adjudged recover his costs, but the restraining order by the court that the plaintiffs do have and re- should be dissolved, for the reason that the cover of and from the defendants their costs and cause justifying such extraordinary remedy charges in this behalf laid out and expended." had ceased to exist. Majenica Telephone Co. When the suit was filed on September 4, v. Rogers, 43 Ind. App. 306, 309, 87 N. E. 165. 1905, and the temporary restraining order is[3] The evidence is not before us, and sued, the notes were not due, but one of them therefore we are warranted in assuming any fell due on October 1, 1905, and the other on possible evidence within the issues that will October 1, 1906. The judgment dissolving be consistent with the judgment of the Huntthe temporary restraining order was render-ington circuit court. If upon the trial in the ed on April 21, 1908, long after the maturity Huntington circuit court, the evidence showof the notes. The record shows that the case ed that at the time the suit was begun and was submitted to the Huntington circuit the temporary restraining order issued, the court for trial "on questions of injunction payees of the notes were not intending or and cancellation of notes described in plain-threatening to transfer them to innocent purtiff's complaint." The court found for the defendants "that the restraining order herein should be dissolved," and adjudged "that the restraining order heretofore issued in this cause be and the same is hereby dissolved," but said nothing about cancellation of the notes. The language of the submission, the finding, and the judgment make it clear that the issues presented by the cross-complaint were not tried or determined by the Huntington circuit court, and also that the temporary restraining order previously issued was dissolved. The judgment itself deals only with the temporary restraining order and the question of the costs of the trial in the Huntington circuit court, while the language of the submission indicates that the question of cancellation of the notes was submitted to the court. The record is therefore ambiguous with reference to what was actually tried and determined by the Huntington circuit court. [1] Where the record, including the pleadings, is clear and unambiguous, it is the best evidence of what was adjudicated, and is conclusive, but where it is ambiguous, parol proof may be heard to determine what was actually tried and determined. Mitten et al. v. Caswell-Runyan Co., 52 Ind. App. 521-528, 99 N. E. 47, and cases cited. [2] There is no dispute that the notes were past due at the time of the trial and rendition of judgment in the Huntington cir chasers, and at the time of the hearing the notes were past due, then it is apparent that there was no cause for the issuance of the restraining order in the first instance, and that no defense could be lost by their subsequent transfer, and that the court should in such event dissolve the temporary restraining order and adjudge the costs on that issue against the plaintiffs, as was done in this case. [4] It appears from the record that evidence was heard at the last trial to determine whether the questions pertaining to the merits of the controversy were tried and determined by the Huntington circuit court, and that the finding was to the effect that such questions were not then tried and adjudicated. As already indicated, there is sufficient ambiguity in the record to warrant proof de hors the record to determine what was in fact adjudicated, and where this is the case, the question is to be determined in the light of the facts shown by the record, supplemented by the facts proven by any competent evidence. Nickless v. Pearson, 126 Ind. 477, 489, 26 N. E. 478. [5] The nature of the issue presented by the pleadings was such that the court could very properly try and determine the question of the plaintiff's right to an injunction without determining the merits of the case. In the case of Adair v. Mergentheim, 114 Ind. 303, 16 N. E. 603, Mitchell, C. J., in speaking of the application of the rule of res adjudicata said: "In application of these general rules regard must be had, however, to the nature and purpose of the proceeding in which the judgment, the effect of which is in question, was rendered." [6] The record in this case is clear and definite that the court did not try and determine the issues presented by the cross-complaint of the defendants and the answers thereto. It is also plain that to have determined the plaintiff's right to a cancellation of the notes involved a consideration of all the questions pertaining to the merits of the case. If the Huntington circuit court had tried the phase of the merits of the controversy brought into the case by the complaint, it would in all probability have required the parties to try the issues relating to the merits of the same controversy presented by the cross-complaint. Furthermore, it appears from the record that shortly after the rendition of the judgment dissolving the temporary restraining order, appellees filed their affidavit for a change of venue from the county, which was granted by the court without objection or exception by appellants. It is therefore apparent that at that time the trial court and all the parties to the suit regarded the case as yet untried on the merits, for it is not probable that the court would have granted a change of venue in a case it had finally disposed of upon the merits of the controversy. Nor, is it at all likely that a party in whose favor such judgment had been rendered would have failed to, in some way, put into the record his objection to such change of venue. [7] The judgment of a court is only presumptively conclusive when it appears that the suit and the issues were of such a character that the judgment relied upon to show former adjudication of the questions involved in the issues could not have been rendered without deciding the particular questions again presented by the issues of the case under consideration. McBurnie v. Seaton, 111 Ind. 56, 58, 11 N. E. 101; Dygert v. Dygert, 4 Ind. App. 276, 280, 29 N. E. 490. The issues in this case were such that the questions relating to the injunction could very properly be tried and determined without a trial of the case upon its merits, and this is what the finding shows was actually done. From our examination of the record itself, aside from the finding as to what was adjudicated by the Huntington circuit court, we have no doubt that the finding is true, and the record, as already shown, does not clearly show an adjudication by the Huntington circuit court upon the merits of the controversy. Judgment affirmed. (57 Ind. App. 115! DROLLINGER. DROLLINGER. (No. 8436.) (Appellate Court of Indiana, Division No 2. Oct. 15, 1914.) DIVORCE (8 235*) — ALIMONY - UNFAITHFUL WIFE. Where, in a wife's action for divorce, a divorce is granted to the husband on his cross-bill on proof of the wife's infidelity, an order allowing her alimony is an abuse of discretion. [Ed. Note.-For other cases. see Divorce, Cent. Dig. § 665; Dec. Dig. § 235.*] Appeal from Circuit Court, Fountain County; I. E. Schoonover, Judge. ick D. Drollinger for divorce. A decree of Suit by Elsie A. Drollinger against Frederabsolute divorce was granted to defendant on his cross-bill, and from so much of the decree as allowed plaintiff alimony, he appeals. Reversed. Valentine E. Livengood, of Covington, for appellant. IBACH, P. J. Appellee brought this action against appellant for a divorce on the grounds of cruel and inhuman treatment. Appellant filed a cross-complaint asking a divorce on the ground that appellee had been guilty of adultery. The court granted appellant a divorce on his cross-complaint, and allowed appellee $500 alimony; the evidence showing that appellant was worth about $1,400. The court erred in allowing alimony, since the finding in appellant's favor on his crosscomplaint is a finding that appellee was guilty of adultery, the only ground for divorce therein alleged. A court that grants alimony to a wife who has yielded her person to intercourse with a man not her husband abuses its discretion. No alimony should be allowed in such cases. This proposition is well settled by the decision in the case of Spaulding v. Spaulding, 133 Ind. 122, 32 N. E. 224, 36 Am. St. Rep. 534, and is also supported by the following authorities: Spitler v. Spitler, 108 Ill. 120; Goldsmith v. Goldsmith, 6 Mich. 285; Robards v. Robards (Ky.) 110 S. W. 422; Dollins v. Dollins (Ky.) 83 S. W. 95; 1 Bishop, Marriage and Divorce, § 861. The court should have sustained appellant's motion to annul and modify the judgment for alimony. Appellee has not briefed the case, and has not resisted the appeal. The judgment is reversed, with instructions to sustain appellant's motion to modify so much of the decree as awards alimony, and to vacate and annul that allowance. As to all other matters, the decree is affirmed, and, as the death of appellant since the trial has been suggested, this mandate is to be effective as of date of submission. (264 Ill. 638) PEOPLE v. HILL. (No. 9300.) (Supreme Court of Illinois. Oct. 16, 1914.) 1. CRIMINAL LAW (§ 369*)-EVIDENCE-ОтнER OFFENSES. In a prosecution for perjury in giving false testimony before a grand jury which was investigating whether the offense of playing a game with cards for money had been committed in the county, in that accused testified falsely that he had not been present when any game had been so played within 18 months, the record of a conviction of accused for keeping a gambling house in that county pursuant to an indictment returned by the same grand jury before which the alleged false testimony was given was inad missible. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.*] 2. CRIMINAL LAW (§ 1169*)-APPEAL-EVIDENCE-PREJUDICE. Where, in a prosecution for perjury before a grand jury, accused did not testify and the proof of his guilt was practically undisputed and overwhelming, he was not prejudiced by the erroneous admission in evidence of the record of ment found against him by the same grand jury. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.*] a conviction of another offense under an indict ments. Both cases were tried at the same term of the Moultrie county circuit court, and the same counsel represented plaintiff in error and Miller. The same objections, and some additional ones, are made to this indictment that were made to the indictment in the Miller Case. We held the indictment in the Miller Case was good, and no reasons are assigned that would justify holding the indictment in this case bad. We find no substantial error in the rulings of the court in giving and refusing instructions. In this case, as in the Miller Case, plaintiff in error had been indicted for gaming, had filed a plea of nolo contendere, was found guilty, and was sentenced to pay a fine of $100. The record in that case was offered in evidence and received, over the objections of plaintiff in error. The people also introduced in evidence, over the plaintiff in error's objections, the record of a conviction of plaintiff in error for keeping a gaming house, and the judgment and sentence that he pay a fine of $100. The indictments in both those cases were found and returned by the same grand jury before which the alleged false testimony was Error to Circuit Court, Moultrie County; given. Under the authority of People v. MilWilliam C. Johns, Judge. ler, supra, this was erroneous; but in this Delmer Hill was convicted of perjury, and case, as in that, plaintiff in error did not teshe brings error. Affirmed. W. H. Whitaker, of Shelbyville, and Jack & Whitfield, for plaintiff in error. P. J. Lucey, Atty. Gen., J. K. Martin, State's Atty., of Sullivan, and Eugene P. Morris, of Watseka (E. J. Miller, of Sullivan, of counsel), for the People. PER CURIAM. The indictment in this case charges the plaintiff in error with perjury in giving false testimony before a grand jury in Moultrie county which was engaged in investigating whether the offense of playing a game with cards, for money, had been committed in the city of Sullivan, in said county. A motion to quash the indictment was sustained to the first count. Plaintiff in error was tried under the second count, found guilty by the jury, and, after overruling motions for a new trial and in arrest, judgment was rendered on the verdict and plaintiff in error sentenced to imprisonment in the penitentiary. This writ of error is sued out to review that judgment. The errors relied upon for reversal are: The action of the court in overruling the motion to quash the second count of the indictment, the admission of improper evidence, and the rulings of the court in giving and refusing instructions. [1, 2] The decision in People v. Miller, 106 N. E. 191, is decisive of this case. The second count of the indictment is substantially in the form of the fourth count of the indictment in that case, under which count Miller was tried and convicted. There is little substantial difference between the two indict tify, and the proof of his guilt of the crime charged in this indictment is practically undisputed and so overwhelming that the error would not justify a reversal. In all of its material aspects the case is controlled by the decision in People v. Miller, supra, and the judgment is affirmed. Judgment affirmed. (264 Ill. 560) KERN et al. v. MEYER et al. (No. 8693.) (Supreme Court of Illinois. Oct. 16, 1914.) 1. WILLS (§ 53*)-TESTAMENTARY CAPACITYEVIDENCE-FINANCIAL CONDITION OF CON TESTANT. those having claims upon a testator's bounty may be considered in connection with the will itself in determining the question of testamentary capacity, it was not error to exclude evidence as to the financial condition and circumstances of a sister of the testatrix, to whom she bequeathed $5, where there was neither evidence nor offer to prove that such financial condition was known to the testatrix. While the known financial condition of [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 111, 112, 120-130; Dec. Dig. § 53.*] 2. TRIAL (§ 260*)-INSTRUCTIONS COVERED BY THOSE GIVEN. Error could not be predicated upon the refusal of instructions, the essential parts of which were incorporated in instructions given. [Ed. Note. For other cases. see Trial, Cent. Dig. 8 651-659; Dec. Dig. § 260.*] Error to Circuit Court, Fayette County; T. M. Jett, Judge. Bill in equity by Elizabeth Kern and others against Louis Meyer and others. From a decree in favor of defendants, complainants bring error. Affirmed. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes John A. Bingham and F. M. Guinn, both of | in the city of Vandalia, within a block of the Vandalia, for plaintiffs in error. Arthur testatrix, and that the sisters were on friendRoe, of Vandalia, and Terry, Gueltig & Pow-ly terms. Two or three of the witnesses ell, of Edwardsville, for defendants in error. were asked as to the financial condition of Mrs. Kern at the time the will was made and for several years prior thereto. To these questions the court sustained objections. It was proper to show the financial condition of Mrs. Kern if the same was known to the testatrix, as the known financial condition of those having claims upon a testator's bounty may be taken into consideration in connection with the will itself in determining the question of testamentary capacity. Dillman v. McDanel, 222 Ill. 276, 78 N. E. 591, 113 Am. St. Rep. 400; Healea v. Keenan, 244 Ill. 484, 91 N. E. 646. As contestants did not show or offer to show that the financial condition COOKE, J. Plaintiffs in error filed their bill in the circuit court of Fayette county to set aside the last will and testament of Martha Janett on the ground that the testatrix lacked testamentary capacity and that the execution of the purported will was procured through the undue influence of certain of the defendants in error. An issue at law was made and the cause submitted to a jury, which returned a verdict finding that the instrument was the last will and testament of Martha Janett. A motion for a new trial was overruled and a decree entered in ac cordance with the verdict of the jury. This writ of error has been sued out to review that decree. of Mrs. Kern was known to the testatrix, the objections to the questions asked along this line were properly sustained. without merit. case. The decree of the circuit court is affirmed. (265 111. 46) CHICAGO TERMINAL TRANSFER R. CO. (Supreme Court of Illinois. Oct. 16, 1914.) It is conceded there is no proof in the rec[2] Some criticism is made of the giving of ord of undue influence. The principal point instructions on behalf of proponents and the urged it that the verdict of the jury and the refusing of two instructions asked on behalf The criticisms made are decree of the court are contrary to the mani- of contestants. fest weight of the evidence. A large number The essential parts of the of witnesses testified on both sides. Those refused instructions were incorporated in intestifying on behalf of proponents, in addi-structions given. The jury were fairly and tion to the two attesting witnesses, consisted accurately instructed as to the law of the of bankers, merchants, and various business men with whom Mrs. Janett had transacted business about the time of the making of the will and for a number of years prior thereto, physicians who had attended her during the same time, and various persons who were intimately acquainted with her. Those testifying on behalf of the contestants were mostly relatives of Mrs. Janett, the remainder being friends and acquaintances. The testimony was conflicting. Proponents' witnesses gave in detail the extent of their acquaintance and their business relations with Mrs. Janett and the opportunities afforded them for forming an opinion as to her mental condition. It developed from the evidence offered on behalf of the contestants that Mrs. Janett for a number of years prior to her death was addicted to the excessive use of intoxicating liquor, and it was shown that on a number of occasions she became helplessly intoxicated. The witnesses for contestants generally based their opinion that she was not of sound mind upon her intemperate habits. We do not deem it necessary to discuss at length the evidence adduced. It is sufficient to say that upon an examination of the whole record the verdict is not only not against the weight of the evidence, but is supported by a preponderance thereof. [1] It is contended that the court erred in excluding proof of the financial condition and circumstances of Elizabeth Kern, a sister of the testatrix. The will makes an unequal division of the property of the testatrix among her relatives. Mrs. Kern was bequeathed the sum of $5. It was shown that she lived A judgment for the defendant in a forcible entry and detainer suit was not a bar to the maintenance of an action of ejectment, as the object of an ejectment suit is to try title, while in forcible entry and detainer only the immediate right of possession is involved, and the title cannot be inquired into. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1062-1065, 1100, 1101; Dec. Dig. § 589.*] Appeal from Circuit Court, Cook County; John Gibbons, Judge. Ejectment by the Chicago Terminal Transfer Railroad Company against David Barrett. Judgment for plaintiff, and defendant appeals. Affirmed. Coburn & Bentley, of Chicago, for appellant. Jesse B. Barton, of Chicago, for appellee. DUNN, J. On the former appeal of this cause (252 Ill. 86, 96 N. E. 794) it was held that the plaintiff need not go back of the decree mentioned in the opinion then rendered to prove its title as against the defendant on November 11, 1902. Upon the remandment of the cause a second trial was |