88

a claim which existed at the time of the finding and judgment,87 and is a bar to an action to prevent him from taking possession. A general finding and judgment in ejectment prevents a party from thereafter asserting a claim of title, from whatever source it comes, which he had pending the action and prior to the judgment.89

A judgment in an action of forcible entry and detainer is not a bar to a subsequent action by either party.""

§ 1400. Criminal prosecutions

An acquittal on a criminal charge is not a bar to a civil action against the defendant, though to recover the plaintiff must prove him guilty of the criminal offense.o1

§ 1401. Scope of adjudication

If a suit is disposed of upon any ground which does not go to the merits of the action, the judgment rendered will prove no bar to another suit; hence a finding of the court that "there was no joint liability on the part of the codefendants," and that defendants should therefore recover their costs, is not a judgment on the merits, for the defendants might have been liable, if sued separately."2 A judgment for costs rendered upon a decision in favor of a party to an action is, as a general rule, to be interpreted as a judgment for such party upon the merits.98

87 Commissioners of Marion County v. Welch, 20 P. 483, 40 Kan. 767. 88 Missouri, K. & T. Ry. Co. v. Allen, 73 P. 98, 67 Kan. 838.

89 Peterson v. Albach, 32 P. 917, 51 Kan. 150.

90 Rev. Laws 1910, § 5506; Soden v. Roth, 61 P. 500, 9 Kan. App. 826; Deisher v. Gehre, 26 P. 3, 45 Kan. 583; Redden v. Tefft, 29 P. 157, 48 Kan. 302.

91 In an action by the state to enjoin the maintenance of a liquor nuisance, it is error to render judgment for defendant on the ground that under the same evidence he had been acquitted at law of a criminal charge of maintaining such a place. State v. Roach, 112 P. 150, 83 Kan. 606, 31 L. R. A. (N. S.) 670, 21 Ann. Cas. 1182, rehearing denied 113 P. 401, 84 Kan. 177. 92 Brakefield v. Lucas, 64 P. 10, 10 Okl. 584.

93 Where, in an action for the custody of a child, a decision is made that the defendant is entitled to retain the custody, a judgment rendered upon such decision for the defendant for costs is to be interpreted as a final judgment in favor of the defendant upon the merits. State v. Tillotson, 117 P. 1030, 85 Kan. 577, Ann. Cas. 1913A, 464.

Where the original petition and an amendment made thereto, construed together, set out a claim of indebtedness upon an itemized account, and also upon promissory notes given for such account, and the court trying the case without a jury specially finds in defendant's favor as to liability upon the

Where, in partition, a decree has been entered determining the interests of the parties, and under proper proceedings the court orders a sale of the property, such decree and proceedings are binding on the parties, and neither can thereafter abandon the same and maintain another action in partition."4

A judgment that plaintiff had misconceived his remedy is no bar to a subsequent action brought in proper form within one year.95 A judgment against plaintiff for the reason that he had brought his action prematurely is not a bar to a subsequent action."

§ 1402. Judgments without prejudice

A judgment of dismissal of an action without prejudice is not a bar to another action between the same parties on the same cause of action.97

§ 1403. Reserving rights

A judgment against the defendant which recognizes that a claim of his in another court has not been determined does not bar him. from litigating the claim in such other court.98

notes, but makes no special finding as to liability on the account, but renders a general judgment for costs in defendant's favor, such judgment will be held to be inclusive of the issues as to the indebtedness upon the account, and to bar an action subsequently begun to recover thereon. John V. Farwell Co. v. Lykins, 52 P. 99, 59 Kan. 96.

94 Gerdom v. Durein, 87 P. 1137, 74 Kan. 704.

95 Town of Cross v. De Roberts, 51 Okl. 765, 155 P. 496.

96 Krapp v. Eldridge, 5 P. 372, 33 Kan. 106; Seaton v. Hixon, 12 P. 22, 35 Kan. 663.

97 Moore v. Russell, 65 P. 624, 133 Cal. 297, 85 Am. St. Rep. 166; Missouri, K & T. Ry. Co. v. McWherter, 53 P. 135, 59 Kan. 345; Bates v. Drake, 68 P. 961, 28 Wash. 447.

After a first trial in ejectment the judgment was vacated, on demand of de fendant, by notice on the journal, and the cause continued until the next term of court. The plaintiff dismissed the suit without prejudice. Within a year she commenced a new action against the same defendant for recovery of the same land. Held, that the last action could not be maintained. Deming v. Douglass, 57 P. 954, 60 Kan. 738; Dickson v. Same, 57 P. 954, 60 Kan. 738.

The dismissal without prejudice of a motion for the allowance of a claim of a creditor of a firm seeking to intervene in a suit for an accounting between the partners does not bar an independent action on the claim. Graves v. Neosho Falls Bank, 131 P. 146, 89 Kan. 179.

98 Faier v. Culver, 146 P. 333, 94 Kan. 123.

§ 1404. Default

In an action on a foreign judgment rendered on a note, a default judgment for the defendant on the plea of the statute of limitations is not res judicata as to the validity of the judgment or whether the note was merged therein.""

§ 1405. Motion or summary proceedings

Where the decision on a motion affects a substantial right, and the question is distinctly presented, litigated, and decided, it binds. the parties in subsequent proceedings.1

Where the question of jurisdiction over the defendant was directly put in issue by defendant's motion to vacate a former judgment, the judgment overruling the motion was conclusive on the question of jurisdiction in a subsequent trial between the same parties." An adjudication on the merits of an application for a new trial on the ground of fraud is a bar to another petition and application for the vacation of the same judgment on the same grounds.3

The purchaser of land is not concluded by the overruling of his motion to set aside the sale of the land, on execution against his vendor.1

A decision on a motion to discharge an attachment is not a final adjudication of the rights in the premises, and therefore is not a bar to subsequent proceedings."

99 Merten v. San Angelo Nat. Bank, 49 P. 913, 5 Okl. 585.

1 Com'rs of Wilson County v. McIntosh, 1 P. 572, 30 Kan. 234.

2 McDuffie v. Geiser Mfg. Co., 138 P. 1029, 41 Okl. 488.

& Sanford v. Weeks, 31 P. 1088, 50 Kan. 339.

5

Mills v. Pettigrew, 26 P. 33, 45 Kan. 573.

A judgment overruling a motion by a mortgagee to discharge attached property is not res judicata, and an action may thereafter be maintained by the mortgagee against the sheriff and his bondsmen for the conversion of the property covered by the mortgage. Bishop v. Smith, 72 P. 220, 66 Kan. 621. Plaintiff, claiming to be the owner of land which had been levied on under an order of attachment in an action to which he was not a party, filed a motion to discharge the order of attachment, and after his motion had been overruled, and judgment rendered in the original action sustaining the attachment, and ordering the land to be sold to satisfy such judgment, instituted a suit to quiet his title to said land. Held, that the decision on the plaintiff's motion to discharge the attachment was not a final adjudication of his rights in the premises, and not a bar to the action to quiet title. First Nat. Bank v. Linvill (Kan. App.) 62 P. 165.

An order overuling a motion by an asignee for creditors to discharge an attachment levied on the assigned property does not bar replevin by the as

§ 1406. Void in part

That part of a judgment which is void because it is in excess of the court's jurisdiction does not constitute a bar to the relief sought."

§ 1407. Dismissal

An order on motion of plaintiff dismissing a case "with prejudice" is a final disposition of the controversy, and unless reversed, is a bar to a future action.7

Where the plaintiff is allowed to dismiss without prejudice before the expiration of the time for election to plead, after order sustaining demurrer, such order will not defeat another action in another court on the same facts as set forth in the petition demurred to, or where he is allowed to dismiss without prejudice, pending a ruling on a demurrer to the evidence, or pending a decision on a motion for an instructed verdict, such order does not bar another suit on the same cause of action."

8

The dismissal of a suit, on an agreement between the parties by which settlement is made, is a dismissal on the merits, and a bar to further litigation between the parties.10

signee to recover the property, though the question involved on the motion was the validity of the assignment and the alleged fraud of the parties to it. Blair v. Anderson, 48 P. 562, 58 Kan. 97, 62 Am. St. Rep. 606.

An order vacating an attachment obtained by creditors on the ground that a mortgage of the attached property was fraudulent as to them is not a bar to a subsequent action involving the same question. Miami County Nat. Bank of Paola v. Barkalow, 35 P. 796, 53 Kan, 68.

6 In an action under Rev. Laws 1910, § 4881, to enjoin the levying of a tax warrant issued pursuant to a judgment of the county court, held that that part of the judgment which was void as in excess of the court's jurisdiction constituted no bar to the injunctive relief sought. Rogers v. Duncan, 57 Okl. 20, 156 P. 678.

7 Hargis v. Robinson, 79 P. 119, 70 Kan, 589.

8 Lisle v. Anderson, 61 Okl. 68, 159 P. 278, L. R. A. 1917A, 128.

In action by mine foreman employed pursuant to Rev. Laws 1910, §§ 3983, 3991, for personal injury held, on the record, and in view of Rev. Laws 1910. § 5126, that trial court did not err in denying master's plea of res adjudicata; plaintiff having filed a dismissal of former cause, without prejudice, while amended petition was pending. Oklahoma Coal Co. v. Corrigan (Okl.) 168 P. 1024.

9 Shufeldt v. Jefcoat, 50 Okl. 790, 151 P. 595.

10 Turner v. Fleming, 130 P. 551, 37 Okl. 75, 45 L. R. A. (N. S.) 265, Ann. Cas. 1915B, 831; Robinson v. Chicago, R. I. & P. Ry. Co., 150 P. 636, 96 Kar.

137.

The purchaser of land is not concluded by the dismissal, for want of prosecution, of a suit brought by him to enjoin a sale of the land on execution against his vendor.11

Where a suit to enforce a tax lien on certain land was dismissed without prejudice, such suit did not preclude relief to the lienor in a subsequent proceeding by the owner to quiet title.12

In an action to recover real estate for partition thereof, where the title set up is denied, and the making and delivery of a deed alleged in the petition is denied under oath, a judgment of dismissal. generally is a bar to a subsequent action having the same object in view.13

Where an undertaking in replevin had been given to an officer in his individual name, a dismissal by him of the action on the undertaking is not a bar to a subsequent action on the undertaking prosecuted by the real parties in interest.11

§ 1408. Demurrer

A judgment, sustaining a demurrer to a petition, going to the merits of case, is a final judgment, and constitutes a complete defense as a plea of res adjudicata.15

Where a demurrer to a petition contains several grounds, one of which reaches the merits of the case as pleaded, and the others do not, a judgment for costs upon the sustaining of the demurrer is at

11 Mills v. Pettigrew, 26 P. 33, 45 Kan. 573.

12 Davidson v. Timmons, 129 P. 133, SS Kan. 553.

13 Goodman v. Malcom, 48 P. 439, 5 Kan. App. 285.

14 Norton v. Lawrence, 18 P. 526, 39 Kan. 458.

15 Davis v. Bolon (Okl.) 177 P. 903; Pettis v. McLain, 98 P. 927, 21 Okl. 521; Duncan v. Deming Inv. Co., 54 Okl. 680, 154 P. 651; City of El Reno v. Cleveland-Trinidad Paving Co., 107 P. 163, 25 Okl. 648, 27 L. R. A. (N. S.) 650; Corrugated Culvert Co. v. Simpson Tp., McIntosh County, 51 Okl. 178, 151 P. 854, 4 A. L. R. 1170; McLaughlin v. Doane, 19 P. 853, 40 Kan. 392, 10 Am. St. Rep. 210.

A decision rendered upon a demurrer to a pleading setting forth the facts is as conclusive between the parties as if the facts had been proven upon trial and a judgment based thereon had been rendered. Hyatt v. Challiss, 53 P. 467, 59 Kan. 422.

Where, on appeal, rulings on demurrer are sustained, but the judgment on the pleading is reversed, and the cause remanded for trial on an issue of fact, the first judgment is not a bar to a trial of the issues made as the cause stands for a second trial, or as subsequently amended. King v. Mollohan, 60 P. 721, 61 Kan. 683, judgment affirmed 198 P. 969, 61 Kan. 692.