Page:North Dakota Reports (vol. 48).pdf/564

 agreement to mutually offset accounts, not having been recognized as a matter of fact in the former action, is not now entitled to recognition as a matter of law. The plaintiff in this action offered in evidence the pleadings, instructions of court, verdict and judgment in the former action. The trial court properly received oral testimony concerning the item for hauling lumber, having been at issue and in the evidence of the iormer case. 23 Cyc. 1535, 1539. The trial court properly took judicial notice of the former case to the extent that it did. It was requested the court elect so.to do. § 7937, C. L. 1913; Amundson v. Wilson, 11 N. D. 193, 196, 91 N. W. 37. The pleadings in the former action show that items for hauling lumber by the cropper were at issue. ‘There is evidence in this action that the specific item upon which the cropper sought to offset in this action was asserted and considered in the evidence of the former action. It is well settled that a question of fact once at issue and tried in a former action may not be retried in a subsequent action between the same parties 15 R. C. L. 973; Horton v. Emerson, 30 N. D. 258, 152 N. W. 529; Kupfer v. McConville, post, 185 N. W. 1005. The trial court properly submitted to the jury the question whether the cropper attempted to assert herein the same item litigated in the former action.

The order is affirmed, with costs.

}},, and , JJ., concur.

, C. J. concurs in the result.

, J., dissents.

N. W. SIMONS, et al, Respondents, v. MILO B. DOWD, et al, Appelants.

Stipulations—claim for hail insurance held to belong to crop owner.

1. M. had been the owner of certain lands subject to liens of mortgages and a judgment. The mortgages were foreclosed. The judgment creditor, (D.) took assignments of the Sheriff’s Certificates and at the expir-