#### Dunaway v. Russell.

Opinion delivered May 2, 1927.

*901 C. A. Holland, Murphy, McHaney & Dunaway, for appellant.

J. G. é Wm. J. Clark, R. G. Bruce, R. W. Robins and Will G, Akers, for appellee.

*902Kirby, J.,

(after stating the facts). It is earnestly urged by appellant that the trial court erred in overruling his demurrer to the special plea of. res judicata and estoppel and dismissing his complaint.

No bill of exceptions appears in the record. Our statutes provide that actions for injury to real property must he brought in the county in which the subject of the action is situated. Section 1164, 0. & M. Digest. •

.Appellant’s cause of action for damages was alleged to have grown out of the negligent destruction of his building in Conway, Faulkner County, by the defendants in making the excavation along the foundation thereof, and the damage to the personal property contained in the building was but an incident .to its destruction. Certainly the circuit court of Garland County was without jurisdiction of the plaintiff’s action to recover damages for the negligent injury and destruction of his building situated in Faulkner County, and assuming, without deciding, that he could proceed in his action in Garland County, where defendants were summoned, to recover the damages for the injury to his personal property contained in the building destroyed resulting from the negligent destruction thereof, without waiving his right to recover for injury to the real property, the building itself, it was still necessary to prove the same act of negligence alleged to have caused the injury to the building, since there could have been no recovery of damages to personal property contained therein injured* by the collapse of the building unless there was liability for the destruction of the building itself.

The parties to the action were the same and the allegations of the plea in bar, conceded by the demurrer, shows this fact to have been put in issue in that suit and directly determined against appellant as a ground of recovery, and, such being the case, the same fact cannot be put in issue in this subsequent suit between the same parties, since it was conclusively established in the judgment in the former suit, which remains effective, not having been' modified or appealed from. National Surety *903 Company v. Coats, 83 Ark. 545, 104 S. W. 219; Morgan v. Kendricks, 91 Ark. 394, 121 S. W. 298; Gosnell School District v. Baggett, 172 Ark. 681, 290 S. W. 577; 15 R. C. L. § 450, page 974; § 439, page 964.

There is no bill of exceptions in the record, as already stated, and the judgment of the oonrt recites that documentary proof in support of said special plea was heard,.and this court would indulge the presumption that there was sufficient evidence to sustain the lower court’s finding even if it had not been otherwise shown by the pleading and exhibit to be correct. Coleman v. Mitchell, 172 Ark. 619, 290 S. W. 64.

No error was committed by the lower court in overruling the appellant’s demurrer to the special plea of res judicata and estoppel, nor in returning a judgment thereon for the defendants. The judgment is accordingly affirmed.

McHaney, J., not participating.

Wood and Humphreys, JJ., dissenting.