
    Hizar, an Infant, v. Cowan.
    (Decided June 10, 1935.)
    
      Mr. Herbert L. Kerr and Mr. Robert W. Brown, for plaintiff in error.
    
      Mr. Howard L. Ivins, for defendant in error.
   Matthews, J.

This is a proceeding in error from the Court of Common Pleas of Warren county, and brings under review the action of that court in sustaining the motion of the defendant, Walter S. Cowan, defendant in error here, to strike the petition from the files, ordering that the defendant go hence without day, and in dismissing the action and rendering judgment for the costs against the plaintiff.

The motion to strike the petition from the files, upon which the action of the trial court was predicated, sets forth by averment and by exhibits attached that the plaintiff had previously in case numbered 15728, in the same court, filed an action for the same cause against the defendant and one Henry Russell; that the defendant had demurred to the petition on the ground of misjoinder of parties defendant and causes of action; that the court sustained said demurrer on both grounds, and on the 28th day of March, 1934, entered upon its journal an entry to that effect, and, further ordered that “said defendant Walter S. Cowan be, and he hereby is, dismissed from this case, and that he shall go hence with his costs herein expended”; that, thereafter, on April 16, 1934, the plaintiff filed an amended petition against said Cowan setting forth the same cause of action, upon which summons was served upon Cowan, and that on June 6, 1934, he filed a motion to quash the service for the reason that he was not a party to the action, which motion was sustained on July 16, 1934.

The present action was filed on August 4, 1934. On September 24, 1934, the motion to strike the petition from the files was filed, in which, after reciting all the facts already stated, the defendant alleged that the two petitions set forth the same cause of action. Upon the authority of McGowan v. Rishel, 125 Ohio St., 77, 180 N. E., 542, he moved the court to strike the petition from the files.

An examination of McGowan v. Rishel, supra, discloses that it did not involve two actions for the same cause. Only one action had been filed. In that action two defendants had been joined, McGowan being one of them. His demurrer on the ground of misjoinder of parties defendant was sustained on October 5, 1928, and, in the entry sustaining it, it was “further ordered, adjudged and decreed that the defendant, Lawrence McGowan be, and he is hereby, dismissed from the case and that he go hence with his costs.” Thereafter, on May 31, 1930, and while said entry was in full force and effect, an amended petition upon the same cause in the same action was filed against McGowan. Summons was served upon him. He filed a motion to quash service of this summons. The court sustained the motion. It was that action of the court that was under review.

It is clear from this recital that the statute of limitations had run against the cause of action unless the action could be considered as having remained pending as against McGowan notwithstanding the entry of October 5, 1928, dismissing him from the case. No comparable situation exists in the case at bar. While there are expressions in the opinion in that case which sustain the contention that such a dismissal would preclude a subsequent separate action, they were unnecessary to the decision. The syllabus clearly states and limits the decision. It is:

“A dismissal of one of two joint defendants, upon demurrer on the special ground of misjoinder of parties defendant, is a final order, and unless error is prosecuted from that order within the statutory period within which error proceedings can be begun, becomes a finality, and an amended petition filed in the same cause praying judgment against said defendant, upon the same allegations contained in the original petition, is properly stricken from the files."

Passing the procedural question of whether a motion to strike the petition from the files is the proper method of raising the question, the substantial issue is whether a dismissal of a defendant because of misjoinder of parties or causes, or both, is a bar to a subsequent action against him.

The question is not whether it is a final order from which error could be prosecuted. It seems clear that it is. It either is a final judgment in that case in favor of the dismissed defendant, or it prevents a final judgment. In either event it would serve as the predicate for error proceedings. If the averments of the motion would not be good as a plea of res judicata in an answer, we can conceive of no theory sustaining their validity when incorporated in a motion to quash the service of summons'. This brings us to the consideration of the subject of res judicata.

An examination of the authorities discloses complete unanimity on this subject. If the disposition of the case was upon the merits, it is a bar to any future judicial inquiry. If the case was not disposed of on the merits of the dispute, it is not a bar to an action raising the same ultimate issues. And dismissing an action, or one of the parties therefrom, on the ground of a misjoinder of parties or causes, is not a dismissal on the merits. There has been under such circumstances neither a trial nor an opportunity for trial upon the merits.

The rule is well stated in 2 Freeman on Judgments (5th Ed.), 1557, Section 738:

“A judgment given because of a misjoinder or nonjoinder of parties plaintiff or defendant, or because of the want of capacity of a party plaintiff or defendant to sue or to be sued, establishes nothing but such defect or incapacity, and cannot defeat a subsequent suit in which the vice causing the former judgment does not exist.”

The general rule on the subject is stated by 2 Black on Judgments (2nd Ed.), 1043, Section 693, as follows :

“The general rule is, that a former judgment will not operate as a bar to a subsequent suit upon the same cause of action unless the proceedings and judgment in the first case involved an investigation (or afforded full legal opportunity for an investigation) and determination of the merits of the suit. Or, as otherwise expressed, the judgment must be upon the merits in a competent action, the plaintiff having sued in his proper character, and the pleadings having been correct. ‘If the first suit was dismissed for defect of pleadings * * * or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.’ ”

And, in Section 719, it is said:

“A verdict and judgment for the defendant, or an order dismissing the suit, rendered solely on the ground of a misjoinder, non-joinder, or defect of parties, or because the plaintiff is not the proper party to sue, can have no greater effect than to terminate that particular action; it does not affect the merits and will not bar a subsequent suit on the same cause.”

To the same effect are 23 Ohio Jurisprudence, 1003 and 1006; 34 Corpus Juris, 793; Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Bemis, 64 Ohio St., 26, at page 32, 59 N. E., 745; House v. Mullen, 89 U. S. (22 Wall.), 42, at 46, 22 L. Ed., 838. It would be easy to cumulate corroborative authorities. Section 11233, General Code, permitting a new action to be begun within one year notwithstanding the lapse of time, when the plaintiff fails in the first action “otherwise than upon the merits,” is a recognition of the inconclusiveness of a judgment not rendered on the merits.

By Section 11312, General Code, it is provided that upon the sustaining of a demurrer on the ground of misjoinder of causes of action, plaintiff, on motion, may be allowed to file separate petitions, and have them docketed separately without further notice. This is clearly permissive. It is a recognition that the ruling on the demurrer has not touched the merits. The fact that the plaintiff chooses to pay the costs in the first action and file an entirely new action, and have summons thereon served, does not make a decision upon the merits that which was otherwise not such. There is no similar statute applicable to a situation created by sustaining a demurrer on the ground of misjoinder of defendants. It is suggested in the opinion in McGowan v. Rishel, supra, that Section 11312, General Code, might be applied by analogy, but, if so. it could have no more conclusive effect.

It is urged that because no bill of exceptions was filed the court cannot pass on the questions argued. The journal entry does not recite that any evidence was introduced. The motion was disposed of by the trial court as though its legal sufficiency had been dénied. The plaintiff admitted the facts. Evidence could have done no more. The motion under the circumstances raised a question of law only in the trial court. That is all that is involved here. No bill of exceptions was necessary to raise that question.

For these reasons the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Ross, P. J., and Hamilton, J., concur.  