
    Benoni Roby v. John Rainsberger.
    3. In an action on an alleged joint contract, judgment may be rendered, under section 371 of the code, against one or more of several defendants when it turns out upon the trial that only one or more of them is liable on the contract.
    
      H,. A judgment on the merits, in favor of all the defendants in such action, is a bar to a subsequent action, by the same plaintiff for the same cause of action, against one of the defendants in the former action.
    3. Such judgment is conclusive, not only as to matters thereby actually determined, but also as to every other matter which might have been. litigated and decided upon the issues made in the case, and upon which it was tried.
    Error to the District Court of Carroll county.
    September 29, 1870, John Rainsberger instituted suit in the Common Pleas of Carroll county, against Benoni Roby, to recover money alleged to have been paid by Rainsberger at the request of Roby, and upon his promise to repay the same.
    Roby answered, interposing two grounds of defense:
    “ 1. A denial of the alleged request and promise.
    “ 2. That on the eleventh day of January, 1866, in the Common Pleas of Carroll county,'Rainsberger brought an action against Roby and nineteen others, (in the answer named,) upon ‘the very same identical (alleged) promise and agreement, and to recover the very same identical money ’ mentioned in his petition against Roby; that the defendants, in such former action, answered, denying that they, or either of them, had requested or promised, as Rainsberger, in his petition against them, had alleged; that at the April term of said court, 1866, the issue which thus arose upon the answer of the defendants, was tried to a jury, who returned a verdict in favor of the defendants, and thereupon the defendants recovered against Rainsberger judgment for costs.”
    To the second ground of defense Rainsberger filed a general demurrer, which was sustained by the court.
    At the January term, 1872, the case was tried upon the issue made by the first ground of defense, and verdict and judgment were rendered in favor of Rainsbei’ger.
    Roby prosecuted error in the District Court of Carroll county, assigning for error the sustaining of the demurrer to the second ground of defense in his answer.
    The District Court affirmed the judgment of the Common Pleas.
    This petition in error is prosecuted in the Supreme Court to reverse the judgment of the District Court and that of the Common Pleas.
    
      J. C. Nance, for plaintiff in error, cited—
    Section 371 of the code, Lampkin v. Chisom, 10 Ohio St. 450; Aucher v. Adams & Ford, 23 Ohio St. 543; Brumskill v. James, 1 Kernan, 294; Marquat v. Marquat, 2 Kernan, 336; McIntosh v. Ensign, 28 N. Y. 169; 1 Chitty’s Pl. 636; Babcock & Co. v. Camp, 12 Ohio St. 11; Brockway v. Kinney, 2 Johns. 210.
    
      Shober $ Bailey, for defendant in error:
    The true construction of section 371 probably is that authority to render judgment for or against one of more of several defendants is confined to those eases in which a several judgment may be proper. And the code not having declared when such judgments are proper, the rule would be such as prevailed before the enactment of the code, which did not include such cases as the cause of action sued on in this case.
    Gould’s Pl. sec. 58, and authorities cited, Sifford v. Bealty, 12 Ohio St. 194; Schuyler Co. v. Mercer Co., 5 Cow. 24; 1 Ohio St. 34; Bartges v. O’Neil, 13 Ohio St. 77; Nash Pl. & Pr. 556 to 561 inclusive, and 780, 806; 7 Ohio St. 322; 2 Phillips, 44, 46, and note 271; 3 Phillips Ev. 845; 35 Me. 200; 11 Ga. 265; 10 Ohio St. 54.
   Dav, J..

The point made in the case arises upon demurrer to the second answer, and presents the question, whether a verdict and judgment for the defendants in an action against two or more defendants, on an alleged joint promise for the payment of money, is a bar to a subsequent action by the same plaintiff on the same promise against one. of the defendants in the former action.

The general rule of the common law is that in an action on a joint contract the plaintiff must recover against all of the defendants, or be defeated. But in Lampkin v. Chisom, 10 Ohio St. 450, it was held that, “ the common law rule -that where a joint contract is the subject of an action, the recovery must be against all or neither of the defendants, Ras been modified by section 371. of the code of civil procedure, so as to authorize judgment to be rendered ‘for or against one or more of several defendants,’ where it turns out upon the trial that only one or more of several defendants in such joint action is liable, without subjecting the plaintiff to the necessity of bringing a new action against .such defendant or defendants.”

The holding in Aucher v. Adams & Ford, 23 Ohio St. 543, is in accordance with this ruling. A similar provision in the New York code has received the same'construction hy the Court of Appeals of that State. McIntosh v. Ensign, 28 N. Y. 169.

The several liability of the defendant below in the former action, upon the issue joined in that case, was, then, no less involved in the determination of the case than was his joint liability, for it was as much the right of the plaintiff in that case to litigate and enforce the one as it was the other. Nor was this a matter of discretion with the court. It was the right of the plaintiffj and, in the absence of a contrary showing by the record, it most be presumed that it was not denied to him. If he availed himself of his right to a several judgment against the defendant in that action, the question at issue in this case has been adjudicated; if he did not, it -was his own fault, for he had the opportunity “to do so, and the result in either case is the same; for it is the settled rule, as recently held by this court in Covington and Cincinnati Bridge Co. v. Sargent, ante, 233, that .a former judgment upon the merits of the ease is a bar to a second suit upon the same cause of action between the same parties, and is conclusive, not only upon the subject-matter thereby actually determined, but also as to every other matter which might have been litigated and decided upon the issues made and tried in the case. The reason of rule, as well as that of the modified practice introduced by Ihe code, is said to be founded on the expediency of ending the contentions of parties, and of accomplishing the ends-of justice, by a single and speedy decision of all their rights-

The application of these rules is decisive of the case before us. The Court of Common Pleas erred in sustaining-the demurrer to the second answer, and the District Court erred in affirining the judgment of the Common Pleas.. The judgment of each court must therefore be reversed, and the cause remanded to the Court of Common Pleas for further proceedings.

Judgment accordingly.

Scott, Chief Judge, Wright, Johnson, and Ashburn* JJ., concurred.  