peal in this case. (Porter v. Webb, 22 Ky. Law Rep., 917.) On the former appeal the question involved was whether the court erred when it gave a peremptory instruction to find for the appellant. In reversing the case the court, among other things, said: "The statements of appellant are largely corroborated by Southerland, and also by Reeves, the president of the bank. It seems to us that there is considerable testimony conducing to show that the money for which the note sued on was executed was really the property of J. L. Webb, and not of his wife, the appellee. He loaned the money, gave a check therefor, and shortly after the execution of the note we find it in possession of the husband, properly indorsed by the wife, "to be used by him as collateral to protect his own individual liability to the bank. If, as a matter of fact, the money for which the note was executed belonged to the husband, or the note itself was subsequently transferred to him by the wife for the purpose of investing him with title thereto, then his alleged agreement to look to Southerland & Webb for payment is binding and enforcible. We think, upon the whole case, that the chancellor erred in giving the jury peremptory instructions to find for the plaintiff, and we are also of the opinion that the court erred in refusing to permit appellant to testify as to whom he originally borrowed the money from, and as to how the note in question came to be executed to appellee. These questions should have been submitted under proper instructions to the jury for decision."

On the return of the case both parties introduced testimony tending to support their respective claims. The jury found for appellee. There was a sharp conflict in the evidence. The issue of fact was for the determination of the jury. We are not willing to say that the finding of the jury is so flagrantly against the weight of the evidence as to warrant us in reversing the case for the reason. Counsel for the appellant has analyzed the testimony in a striking and forcible way, but we do not feel like invading the province of the jury by granting a new trial. The court seems to us to have properly submitted to the jury the questions as directed by this court on the former appeal. Whether the court decided the case correctly or erroneously on the former appeal the opinion delivered by it under the doctrine of stare decisis is the law of this case.

The judgment is affirmed.

ROYER WHEEL CO. v. DUNBAR.

(Filed October 22, 1903-Not to be reported.)

1. Plea to jurisdiction-What constitutes entry of appearance-Where a defendant entered a motion to require the plaintiff to paragraph his petition before it filed a plea to the jurisdiction of the court his motion amounted to an entry of appearance to the action, and the court properly disregarded the question as to the jurisdiction.

2. Striking pleadings-In an action on a contract, where the allegations of the petition are denied in one paragraph of the answer, it is proper to sustain a motion to strike out another paragraph of the answer which sets up affirmatively the contract as understood by the defendant, it being competent to prove the contract as construed by defendant under the general issue. 3. Amendment of pleading to conform to proof-It is within the rule of practice to permit amendments of pleadings to conform to the proof. Where

such an amendment proves a surprise to the adverse party such fact should be made known to the court as grounds for a continuance; otherwise, an error of the court in that particular will be considered waived.

Denton & Robinson and Stone & Stone for appellant.

W. S. Pryor and Aaron & Phelps for appellee.

Appeal from Russell Circuit Court.

Opinion of the court by Judge Barker.

Appellant, the Royer Wheel Co., is a corporation created under the laws of the State of Ohio, doing business in this State, and, for the purpose of complying with the provision of section 571 of the Kentucky Statutes, having an agent in Lebanon, Marion county, Kentucky, upon whom process could be served.

Appellee, C. R. Dunbar, instituted this action against appellant in the Russell Circuit Court to recover the price of certain hickory spokes which he alleged he had sold to it. His petition, as amended, substantially sets forth the following contract: "That he had agreed with appellant to cut and deliver to it, at the mouth of Wolf creek, in Russell county, Kentucky, hickory spokes in practically unlimited numbers, at a price per thousand regulated by the quality grade of the spokes delivered; that when he had as many as twenty thousand spokes at the mouth of Wolf creek notice was to be given to appellant. whereupon it agreed to send an agent to the place of delivery, and there cull, classify and pay for the spokes according to contract. The spokes were to be delivered at the mouth of Wolf creek not later than the middle of March, 1902. That in pursuance of this contract he cut, prepared and delivered at the mouth of Wolf creek fifty-seven thousand, four hundred and forty-eight spokes, of which he duly notified appellant, who failed and refused to send an agent to receive, cull and classify, or pay for them; that the average value of these spokes, under and by the terms of the contract, was $20 per thousand, making an indebtedness of appellant to him of $1.148.96. ''

On the 19th day of June, 1902, appellant moved the court to require appellee to paragraph his petition, and afterwards, on the same day, filed an answer, by which it undertook to question the jurisdiction of the court of its person, and alleging that Marion county is the only county in the State of Kentucky in which its agent and officer resides, and that Pulaski county is the only county in which the contract set forth in the petition was inade and was to be executed. Again, on the 20th day of June, 1902, it filed a motion requiring the plaintiff to paragraph his petition, which was sustained by the court, and thereupon it filed, under protest, and not waiving the question of jurisdiction, an answer to the merits of the case as presented in the petition. By the first paragraph of its answer it put in issue all of the material allegations of the petition as amended, and by the second paragraph set up a substantially different contract from that sued on by appellee. All of the second paragraph of the answer was stricken from the record, on the motion of appellee.

A trial being had by jury, a verdict was rendered in favor of appellee for the sum of $778, upon which the judgment of the court was entered, of which the appellant now complains. It is insisted by appellant that the court

erred in requiring it to plead to the merits of the controversy, without first adjudicating the question of jurisdiction raised by the answer filed for that purpose; and this brings up the question as to whether or not appellant's motion to paragraph, entered before it raised the question of jurisdiction, did or not enter its appearance to the action.

In the case of the Standard Furniture Co. v. Stanley, 21 Ky. Law Rep., 452, it was held that the filing of a general demuirer to the petition, prior to a special demurrer to the jurisdiction, entered the appearance of the defendant. In the case of the Sun Mutual Insurance Co. v. Crist, 19 Ky. Law Rep., 305, it is said: "It is well established that a party defendant may appear for the purpose of moving to quash a summons, or the return thereof, without thereby entering an appearance to the action. Not so, however, when he appears for the purpose of seeking affirmative relief, as in the case of a motion to discharge an attachment; nor, we think, in a case like this, where the defendant moved to correct the record."

In the case of Hampden v. Frantz, 17 Ky. Law Rep., 980, it was said, in response to a petition for rehearing, that “this court finds a brief by counsel for the appellees in this case, and, although the names of the appellees are not given, we must regard the brief as an appearance for all, and particularly with the identity of interest pertaining to all the appellees."

In the case of the Maysville & Big Sandy R. R. Co. v. Ball, 21 Ky. Law Rep., 1693, it was held that where a defendant moved the court to quash the return of the sheriff on the summons because of its insufficiency, that this operated to enter its appearance, and gave the court jurisdiction of the parties.

Under the principle established by the cases cited we think the motion to paragraph the petition entered appellant's appearance, and that the court correctly proceeded to a trial of the merits of the case without reference to the question of jurisdiction sought to be raised. Appellant also complains of the action of the court in striking the second paragraph of its answer from the record. In the case of Burke v. Shannon, 19 Ky. Law Rep., 1170, which was an action similar in principle to the one at bar, the defendant filed an answer in two paragraphs, the first of which denied the material allegations of the petition, and, in the second, the defendant alleged, affirmatively, the contract, as he understood it. Upon the motion of plaintiff the second paragraph was stricken from the record. This action of the trial court was approved by this court in the following language: "Upon motion of plaintiff that part of the answer setting up the contract as defendant understood it was stricken out, and we think properly so; it was simply a further denial by defendant in another form of the statement of plaintiff's petition, and the proof of such contract could have been, and was, heard under the issue made by the allegation of the petition and a plain denial thereof by the answer."

Furthermore, although appellant objects to the action of the court in striking from the record the second paragraph of its answer, this is not made a ground for its motion for a new trial, and can not, therefore, avail it here. The court did not err in permitting appellee to amend his petition, changing the time of the delivery of the spokes, under the contract, from the 1st to the 15th day of March, 1902, in order to make the allegation of the plead

ing conform to the proof. This is permissible under the Code, and is constantly done in practice. If appellant was surprised by this change in the date it should have made that fact appear to the court, who would have continued the case, to give it opportunity to prepare for the new issue; its failure so to do waived the error, if any.

Instruction No. 1, the giving of which is assigned for error, seems to em-body the principles of law applicable to the issues raised by the pleadings. There was no real controversy as to the number of spokes delivered at the mouth of Wolf creek, and the jury could not have understood, by the in structions given, that appellee was to receive pay for any spokes he had not. delivered, under the terms of the contract, as contended for by him. The jury were instructed that, unless they believed that the contract beween theparties litigant was as alleged by appellee, they should find for appellant.

In instruction "B.," given by the court, the jury were told that they should not find for the plaintiff the price or value of any spokes sued for that the defendant had not contracted and agreed with the plaintiff to takefrom him, or which he was not to make or manufacture for it.

These two instructions seem to embody the whole law of the case, and obviate the necessity of discussing in detail the instruction offered by appellant and refused by the court.

Perceiving no error in the record the judgment is affirmed.

STUM'S ADM'R, &c. v. STUM, &c.

(Filed October 22, 1903.)

Judgment in bar-Discharge of rule-Where the court sustained a demurrer to a rule issued to compel the restitution of money received by one undera judgment which had been vacated, and entered a judgment discharging the rule on the ground that the plaintiffs in the rule, having gotten back the lands sold under the judgment afterwards vacated, were not entitled to compel the restitution of the proceeds of the sale, the judgment was a final order from which an appeal might have been taken, and, being unmodified and still in force, operates as a bar to a subsequent proceeding for a ruleagainst the same party to require the repayment of the same fund, notwithstanding it might have been based on erroneous grounds.

E. D. Guffy, Ben D. Ringo and W. A. Wickliffe for appellants.

J. S. Glenn for appellees.

Appeal from Ohio Circuit Court.

Opinion of the court by Judge Hobson.

A. M. Stum died intestate a resident of Ohio county previous to the year 1890, and D. B. Roll was appointed his administrator. Roll, as administrator, on November 5, 1891, filed a suit in the Ohio Circuit Court for the settlement of the estate. The debts were reported to be $2,194.57, and at the May term, 1892, a judgment was entered to sell the land of the intestate for the payment of the debts. The sale was made in August, 1892, L. A. McDaniel being the purchaser at the price of $2,261.02. At the following December term the sale was reported to the court, exceptions were filed to it, but they were overruled, and the sale was confirmed. In the meantime, on Novem

ber 5, 1892, A. H. Stum, who was the guardian for two of the infant children of the intestate, filed for them in the Ohio Circuit Court a petition for a new trial in the action, and to set aside the judgment entered at the May term. He made defendants to his petition D. B. Roll, who, as administrator, was plaintiff in the former suit, and J. S. Miller, who, as administrator of L. H. Stum, had been allowed a claim of $800 by the judgment, and as administrator of Emma Stum, a claim of $498 Issue was joined on the allegations of the petition in the suit for new trial, and on November 30, 1895, the case was submitted in the circuit court. The court adjudged in favor of the plaintiffs, granting a new trial. At the March term, 1896, a rule was taken out against Miller as administrator of L. H. Stum, also as administrator of Emma Stum, to pay into court the amount he had received under the judgment which had been set aside. He filed a response to this rule, pleading in effect that he had been appointed by the Muhlenberg County Court; that he had settled his accounts in that court and had paid out the amounts in his hands to the persons entitled thereto, and that his settlement had been confirmed by the court long before the rule was taken out. He also filed a demurrer to the rule. On March 21, 1896, the court sustained the demurrer to the rule, and discharged it. No ruling was made on the sufficiency of the response. On April 27, 1896, Miller, McDaniel and Roll sued out in this court an appeal from the judgment granting a new trial and setting aside the former judgment; and McDaniel and Roll executed supersedeas bonds and sued out a supersedeas, but Miller took out no supersedeas. On May 31, 1898, the appeal was heard in this court and the judg ment appealed from was affirmed. (Roll v. Stum, 20 Ky. Law Rep., 661.) After the new trial was granted litigation ensued between McDaniel, the purchaser of the land, and the infant children of the intestate as to whether McDaniel was entitled to a lien on the land for the purchase money which he had paid, and on December 18, 1901, it was held by this court that he was entitled to a lien for his purchase money. (McDaniel v. Stum's Adm'r, 23 Ky. Law Rep., 1935.) On June 28, 1902, the infants by their guardian sued out an appeal in this court from the judgment of November 30, 1895, on the ground that it was erroneous as to them in certain particulars. This appeal was heard by this court and the judgment was affirmed on June 9, 1903, (25 Ky. Law Rep., 208, Stum v. Roll's Adm'r.) In the meantime, on May 20, 1902, another rule was taken out onthe motion of the infants, or their representative, against Miller, as administrator, to pay into court the amounts received by him as administrator under the original judgment. In response to the rule he pleaded the judgment on the former rule in bar. He also pleaded the five-year statute of limitation, and set up as before that he had paid out the money in the year 1893 to the heirs and distributees of the estate, and had settled his accounts; that his settlement had been confirmed, and he had been discharged by the Muhlenberg County Court in the year 1893. The court sustained a demurrer to his response, and gave judgment against him for the money, with interest. From this judgment he appeals. As to the plea in bar we have had difficulty to determine just what was decided on the former rule. A judgment dismissing a proceeding on the ground that it is premature does not bar another action. On the contrary a judgment on demurrer, that certain facts do not constitute a cause of action,