
    AS TO THE BAR OF A FORMER JUDGMENT.
    Circuit Court of Hamilton County.
    Addison Y. Reid et al v. George Mathers et al.
    Decided, February 3, 1912.
    
      Adjudicata — Claim Not Heard on Its Merits Not Affected ly a Former Judgment — Identity of Claims Set Up in Former Suit.
    
    1. A claim is not barred on tbe ground of res judicata unless sucb claim bas been adjudicated on its merits in tbe former case.
    2. -In the trial of an action for money where tbe defense of res judicata ■is interposed it is proper for tbe court to admit as evidence so much of tbe record of tbe former trial as will aid in tbe determination of such issue.
    3. It appearing from sucb evidence that, in the former action between tbe same parties for damages for breach by tbe lessee of tbe covenants for tbe payment of taxes and assessments, judgment was rendered for an amount which included certain items not then due and paid by plaintiff (lessor); and that upon deciding a motion for a new trial, tbe court, for that reason reduced th§ judgment to tbe extent of sucb unpaid items finding that they were included “by inadvertence” in tbe judgment entry; and it also appearing that tbe plaintiff consented to a remittitur of said excess: Held, that tbe judgment is not a bar to an action for recovery of tbe amount of said assessments thereafter paid.
    
      Horace L. Smith and H. E. Engelharrdt, for the plaintiffs in error. ^ ■
    
      Chas. B. Wilby and Oliver S. Bryant, contra.
    Jones, J.; Smith, P. J., and Swing, J., concur.
   Wé think it was proper to admit all evidence in the court' below which tended to prove what the entry of April 21, 1903 in ease No. 121794 in common pleas court really meant. The former judgment could only be a bar to recovery in ease the court in that case decided the claim here sued upon on its merits. It is claimed that this was done; that the court regularly rendered judgment for a sum including the items upon which the petition in this ease is based.

The record bears out this claim.

But, after the ease had been heard and decided by the court without the intervention of a' jury, a motion for a new trial was filed in which there was no mention of mistake or excess in the amount of the judgment. The motion was overruled and in the entry the court, apparently on its own motion, corrected the former judgment entry in the amount thereof, expressly stating that by inadvertence it included certain items or sums of money not yet paid by plaintiffs.

The action was one for damages and the trial court evidently acted upon the theory (correctly, as we think) that where the assessments had not been paid the right of action had not accrued.

But, it is not material whether or not this view was correct. The entry shows clearly that the reduction was made solely for the reason, as before stated, that the assessments had not yet been paid and that the right of action had not accrued. There was, therefore, in the action of the court, no adjudication of these separate items of the account upon their merits.

The use.of the word “remit” in the final entry can not change the rights of plaintiffs as the manifest intention was to consent to the reduction only, and this, for the reasons given by the trial judge. There is no waiver, express or by implication, of the items of the account which the court found have been erroneously included in the judgment. There is no remittitur of the claim, but simply, “from said judgment.” There is no language in the entry that could be construed into a voluntary' relinquishment of the claim.

The verdict below and judgment thereon are sustained by the evidence and we find in the record no prejudicial error.

Judgment affirmed.  