
    FAIN, adm’r, et al. v. HUGHES et al., ex’rs.
    The dismissal on demurrer of a petition bars another action based on the same facts, .if in sustaining the demurrer the court necessarily “ decided upon the merits of the cause; ” nor is a second suit in such case maintainable merely becausethe plaintiff prays therein not only for the relief originally sought but for other and further relief, the right to which, however, depends upon the identical allegations set forth in the first petition.
    Submitted June 10,
    Decided July 27, 1899.
    Equitable petition. Before Judge Kimsey. Union superior court. April term, 1898.
    
      W. E. Candler, Boyd & Lilly, and H. H. Dean, for plaintiffs.
    
      W. L. Telford and W. A. Charters, for defendants.
   Lumpkin, P. J.

An equitable petition was filed in the superior court of Union county, by A. A. Fain, administrator of M. M. Fain, and by John England, against T. C. Hughes and M. G. Hamby, executors of T. M. Hughes. The defendants filed a plea of res adjudicata, and the case was submitted to the presiding judge for determination without the intervention of a jury. The defendants introduced in evidence the record of a former equitable proceeding which had been instituted by the same plaintiffs against the same defendants, and showed that this action had been dismissed upon a general demurrer for want of equity. A comparison of the two petitions discloses that they undertake to set forth identically the same cause of action. It is true that the last petition prays for certain relief to which no reference was made in the first petition; but the right, if any, to such additional relief is based upon the precise state of facts set forth in the petition filed in the first instance. In sustaining the demurrer to that petition, the court adjudicated solemnly and finally that the plaintiffs had no cause of action and were not entitled to relief of any kind. This case, therefore, is controlled by section 3744 of the Civil Code, which declares that: “If upon demurrer the court has decided upon the merits of the cause, the judgment may be pleaded in bar of another suit for the same cause.” Accordingly, we affirm the judgment of the court below sustaining the plea of res adjudicata.

Judgment affirmed.

All the Justices concurring.  