
    Gorman v. The Star Rebound Controller Co.
    (Decided December 3, 1928.)
    
      Mr. Gerald A. Boyle, for plaintiff in error.
    
      Mr. T. J. Illoffett, for defendant in error.
   Sullivan, P. J.

This cause is here on proceedings in error, and the parties stood in the court below as they appear here. An objection at the trial to any evidence being offered upon the doctrine of res adjudieata was sustained, so that the question here is whether there is prejudicial error in the ruling of the court in sustaining the motion objecting to the evidence. Motion for a new trial was made, and the same was overruled, and this judgment is also called into the question.

The question of res adjudieata appears by reason of the defense offered that on or about December 1, 1924, this same plaintiff, with the same defendant, commenced a proceeding in the United States court for the northern district of Ohio, eastern division, for damages for breach of an agreement, and there the prayer was for a judgment in the sum of $60,000. There was a demurrer filed and sustained on the ground that the petition did not state facts sufficient to constitute a cause of action.

In the United States court, in the action for damages at law, upon the sustaining of the demurrer on July 1, 1925, it appears that plaintiff failing and refusing to file a further pleading, and not asking to plead further, the court rendered judgment for the costs in favor of the defendant. The lower court in the instant case found that the doctrine of res adjudicate, applies, after taking into consideration the judgment rendered in the case above noted in the United States court.

We find upon examination that the statement of claim filed in the lower court, and the allegations of the petition filed in the federal court, are substantially the same in character and averments, and, it appearing that the parties as well as the subject-matter are the same, there is no question in our minds that the doctrine of res adjudicate applies.

It is conclusive that, had the plaintiff in the federal action proceeded to trial, the ■ cause of action in the court below would necessarily have been included. This being so, it is clear that the doctrine of res adjudícala operates.

The sustaining of the demurrer in the federal court results in a status as to the allegations of the petition that would exist had the demurrer been overruled, instead of sustained, and the case had proceeded to trial, and from an examination of those allegations, together with the examination of the record in the case at bar, there is no question in our minds that the parties being the same, the subject-matter being the same, and the matter having already been adjudicated by the federal court, the doctrine of res adjudicata impregnated the hearing in the court below. Consequently the court was correct in its ruling.

It is unnecessary to quote a mass of authorities, but we cite Hull v. Norris, Exr., 14 Ohio App., 108, affirmed 100 Ohio St., 521, 127 N. E., 924; Covington & Cincinnati Bridge Co. v. Sargent, 27 Ohio St., 233.

Holding these views, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

Vickery and Levine, JJ., concur.  