
    Moore v. Dunn.
    In an action by M. against D., a demurrer to tbe petition was sustained for want of a material averment therein, and M. failing to amend, judgment was given for D.
    M. afterward brought another action against D., upon the same cause of action, and in his petition supplied the material averment wanting in the petition in his first action.
    Held: That the judgment in the first action was not a bar to the cause of action alleged in the second one. .
    Error to the District Court of Brown County.
    The plaintiff in error on June 25th, 1875, commenced an action against the defendant in error alleging in his petition that on April 80th, 1873, he as surety and one Handman as principal, made and gave a promissory note for $500 to the defendant Dunn; that there was $400 of usury included in the note; and that “ before said note became due the defendant transferred the same by indorsement and delivery to one Joseph Liming,” and averring further that by reason of the transfer he was unable to make defense that the note contained usury. A demurrer was filed to this petition, which was sustained. After sustaining the demurrer the entry in the common pleas proceeds: “And thereupon the plaintiff electing to abide by his petition and not desiring to amend said petition, it is considered by the court that the plaintiff has no cause of action against the defendant, and that the defendant go hence without day.” On November 16th, 1877,‘the plaintiff, Moore, filed his petition in the same court, praying for judgment against Dunn upon the same cause of action, which was alleged in the same words as in the petition in the former action, except that in the petition in the latter case the plaintiff supplied the averment -for the want of which the petition in the first case was held not to state a cause of action. This averment was, that Liming had purchased the note before maturity, for value and without notice or knowledge that it contained usury.
    
      In this action the defendant set up as a defense the judgment given for him when the demurrer in the first action was sustained.
    This defense was not sustained in the common pleas and judgment was given for the plaintiff. This judgment was reversed by the district court. And the plaintiff in the common pleas now asks a reversal of the judgment of reversal in the district court.
    
      W. W. Young and C. Bambach, for plaintiffs in error,
    cited Love v. Truman, 10 Ohio St., 45 ; Packet Co. v. Sickles, 5 Wall., 592; Bigelow on Estoppel, 22, 24 ; Porter v. Wagner, 36 Ohio St., 471; Gould v. R. R. Co., 91 U. S., 533; Landenbock v. Collins, 4 Ohio St., 261.
    
      Thomas, McKnight Thomas, for defendant,
    cited Bell v. McCullock's Executors, 31 Ohio St., 397; Hites v. Irvin's Administrator, 13 Id., 283; Covington Bridge Co. v. Sergeant, 27 Id., 233; Roby v. Rainsberger, 27 Id., 674; Somesen & Sears v. Cresap, 28 Id., 668; Petersine v. Thomas, 28 Id., 596; Pollock v. Cohen, 32 Id., 514; Erving v. McNary, 20 Id., 315; Beaumont v. Herrick, 24 Id., 446.
   McCauley, J.

The single question in this case is, whether or not a judgment for the defendant upon a petition which did not state facts sufficient to constitute a 7ause of action, is a bar to a future action between tbe same parties for the same cause. A judgment for the defendant given upon the facts stated in the petition is conclusive upon the plaintiff only as to the facts therein stated. If the facts alleged make a cause of action a judgment upon them is final between the parties. If the facts do not state a cause of action a judgment upon them is not a judgment on the merits of the case, and does not stand in the way of a future action for the same cause. Gould v. Evansville R. R., 91 U. S., 526; Wells v. Moore, 49 Mo., 229; Gilman v. Rines, 10 Pet., 298. Counsel for defendant in error urge, upon the authority of Covington Bridge Co. v. Sargent, 27 Ohio St., 233; Rody v. Rainsberger, Id., 674, and Bell v. McCulloch, 31 Id., 397, that tbe second action can not be maintained. These cases do not support the claim of the defendant. They apply to a wholly different question. In these cases sufficient facts were alleged to make a cause of action, and the cases were tried upon the merits, after which the losing party set up the same claim in a different form, or asked for different relief upon the same facts. The cases are authority for the rule that, when issues have once been determined between the parties involving the merits of the matters in controversy, the same issues will not be heard again, even though the same issues may be supported by a different state of fact. The pleadings in these cases stated causes of action and defenses, and the trial was on the merits. The merits of the case having once been heard the judgment was final; while a judgment for a defendant on demurrer to a petition which did not state a cause of action determined nothing, only that the facts alleged were not sufficient to constitute a cause of action. The determination, therefore, did not reach the merits of the case and did not conclude the plaintiff in a future action in which sufficient facts were alleged.

Judgment of District Court reversed and that of Common Pleas affirmed.  