#### J. S. Garrett et al. v. Chas. M. Peirce et al.

1. Former Decisions—Not Affected by a Change of Membership in the Appellate Tribunal.—As an ordinary rule a mere change in the membership of an appellate tribunal ought not to reopen in the same case questions once settled by it.

Error, to the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the May term, 1899.

Affirmed.

Opinion filed July 20, 1899.

R. L. Fleming and A. E. DeMange, attorneys for plaintiffs in error.

Peirce & Peirce, attorneys for defendants in error.

Mr. Justice Dibell

delivered the opinion of the court.

In order to obtain an extension of a bank note, S. S. Porter and John B. Boyer, sureties thereon, each gave a mortgage upon his farm to secure it. Thereafter Boyer conveyed his farm to Garrett. The mortgagee filed a bill *32to foreclose the Porter mortgage. Porter paid the debt and the mortgagee assigned to him the Boyer mortgage. He in turn assigned it to certain parties who had furnished him money with which to make the 'payment, and also assigned to them his right of subrogation against Boyer. Those parties began this suit by tiling a bill to foreclose the Boyer mortgage. Garrett demurred to the bill, claiming the rights set up were extinguished or were personal and non-assignable. The circuit judge sustained the demurrer and dismissed the bill. The case was brought to this court and is reported in Peirce v. Garrett, 65 Ill. App. 682. The circuit judge who sustained the demurrer was then and still is a member of this court, and took no part in the decision here. It was there contended that the payment of the debt acted as a release of the Boyer mortgage; that the assignment of that mortgage after the mortgage debt was paid carried nothing to Porter; that the right of subrogation did not extend to the Boyer mortgage or give Porter any right to enforce it; and that the right of subrogation is pérsonal and non-assignable. The majority of this court held against these contentions and that the bill stated a case entitling the complainants to a foreclosure, and remanded the cause. It then proceeded to a decree for complainants, which we reversed in Garrett v. Peirce, 74 Ill. App. 225, for errors in the decree. The judges who first decided the case here were no longer members of this court, and the position that complainants could not maintain the bill was again argued by defendants, but wre declined to consider those questions. The court-below has now entered another decree of foreclosure for half the amount Porter paid, with interest, and the case is again brought before us.-

The brief of plaintiffs in error is devoted chiefly to another discussion of the same questions presented when the case was first here. We are still of the opinion that the first decision of this court must be treated as the law of this case until the Supreme Court decides otherwise. As an ordinary rule a mere change in the membership of *33an appellate tribunal ought not to reopen in the same case questions once settled by it. Such a course would introduce great confusion. The court below was bound to obey the instructions given it when the case was first here. It has proceeded in conformity with that opinion. We think we ought not to reconsider those instructions.

Garrett set up as a defense that Boyer and wife signed, acknowledged and delivered the mortgage before the note to be secured thereby was described therein, and with the understanding that it should secure only $2,000 of the principal of the note, which was for $8,400, and that thereafter, without Boyer’s knowledge or consent, the mortgage was wrongfully made to secure the entire debt. Much evidence fro and eon was heard upon this subject. We are satisfied the preponderance of the evidence supports the mortgage as it reads. We think it quite likely that the present conflict in the recollection of the several witnesses arises from the fact that in the discussion which took place as to the value to the mortgagee of the several securities then proposed, the president of the bank said that he did not think the Boyer farm (upon which there was a prior mortgage for $2,000) was very good security for more than $2,000 of this debt. The decree is affirmed.

Mr. Presiding Justice Crabtree took no part.