
    No. 900
    SAPIENZA v. FERTEL.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7394.
    Decided June 14, 1926.
    1027. RES ADJUDICATA — Requires identity of subject matter, cause of action, persons and parties and identity in quality of persons for or against whom claim, is made. Cannot be determined on mere motion for dismissal, upon statement of counsel.
    Error to Municipal Court.
    Lewis Drucker, Cleveland, for Sapienza.
    Wm. A. Finn, Cleveland, for Fertel.
   SULLIVAN, J.

Sapienza brought suit in the Municipal Court to recover damages for an alleged assault.

Fertel claimed res adjudicata, and when the case came on for trial the following entry was made: “This case being settled it is dismissed at plaintiff’s costs, for which judgment is rendered. Case adjudicated as against the master.” •

Error was prosecuted, it being claimed that the order and finding of the court are conti ary to law in that 11589 GC. provides the methods as to how actions can be dismissed without prejudice.

No evidence was offered on the question of res adjudicata and the adjudication made by the court obviously was not upon the merits of the case.

It seems that the suit upon which the claim of res adjudicata is made, was against one Manheim, who, .it is was alleged in the former suit, participated in the assault.

A matter is not res adjudicata unless four conditions concui, namely: Identity of subject matter, identity of cause of action; identity of persons, and identity in quality of the persons for or against whom claim is made. Heald v. Cleveland, 19 O. N. P. (Ins.) 305.

It was necessary, in the instant case, for the court to determine whether the same facts existed in the former suit, but this could not be done on a mere motion of dismissal upon statement of counsel; and hence the disability of the court to decide the question as to res adjudicata.

(Levine, PJ. and Vickeiy, J., concur.)  