
    James Wanzer v. Hollis Self.
    1. Where án appeal is taken from a final judgment in an action, to one count of which a demurrer was sustained and the others tried on issues of fact, the appeal vacates the ruling on the demurrer as well as the final judgment, and the appellate court may try again the question of law made by the demurrer, and also all the other issues made by the pleadings in the case.
    2. A judgment dismissing an action without prejudice to a future action'is an entirety, and, though it may have been so rendered erroneously, it will not constitute a bar to a subsequent action upon the same subject-matter.
    Error to the District Court of Brown county.
    The original petition was filed December 8, 1870, by the plaintiff', Wanzer, against Hollis, Self and wife, in the Court of Common Pleas of Brown county. The plaintiff averred that, being the owner of a tract of land worth seven hundred dollars, on the 8th day of January, 1866, he mortgaged the same to Self to secure the payment of $330, payable in a year. He further states that, being an uneducated, ignorant and recently emancipated slave, wholly unacquainted with business, the defendants represented that it was necessary for his protection for him to convey said land to some one in trust for him, and induced him on the 6th day of April, 1866, without consideration, to convey the same to the wife of Self, upon their promise that it should be reconveyed to him wdienever requested ; that they have ever since occupied the same, and received the rents and profits thereof amounting to more than a thousand dollars. He further states that the deed was so- obtained for the purpose of defrauding him out of said land ; that they refuse to reconvey it, and that for the purpose of perfecting-such fraud, on the 9th day of September, 1870, they conveyed the land without consideration to Alfred N. Ereeman, who received the same for the sole purpose of aiding them in perpetrating such fraud. Ereeman was also-made party to the action.
    The defendants answered : 1. By a general denial of the allegations of the petition. 2. The conveyance to Ereeman as a bona fide purchaser. 3. That on the 4th day of July, 1866, the plaintiff filed in the same court his petition against the defendants, Self and wife, in substance the same as that in the present case, upon which issue was taken by them ; that at the March term, 1867, the case was-referred to a referee, who, upon hearing the evidence, reported in favor of the defendants, and that the case should be dismissed; that the court approved the report, and rendered judgment, that the petition be dismissed without prejudice to a future action, at the costs of the plaintiff. To this defense the plaintiff demurred, and the court sustained the demurrer. The case was afterwards tried on the-merits, and the court found that the deeds to the wife of Self and from her to Ereeman, were without consideration and fraudulent; that the mortgage to Self had been fully paid by the rents and profits of the land; and decreed that the mortgage be released, and the land reconveyed to the-plaintiff*. The defendants appealed to the district court. That court overruled the demurrer to the third defense, and (the plaintiff electing to abide by his demurrer) held the answer to be a bar to the action, and dismissed the petition.
    Thereupon the plaintiff prosecuted his petition in error in the supreme court, to reverse the judgment of the district court, on the grounds that the demurrer, upon which the case was decided, was not before that court; and that the court erred in overruling the demurrer.
    
      A. G. Collins, for plaintiff in error.
    
      G. Bambach, for defendant in error.
   Day, Chief Judge.

Two questions are presented : 1. Did the appeal have the effect to bring the demurrer to the third defense before the appellate court to be disposed of by that court ? 2. If so, did that court err in overruling the demurrer?

1. There "was but one final order or decree rendered by the common pleas; from that decree the defendants appealed. The appeal vacated the findings and judgments of the court below on all the issues of law and fact made .by the pleadings in the case. The statute provides that “ the action so appealed shall be again tried, heard and decided in the district court, in the same manner as though such district court had original jurisdiction of the action.” S. & S. 589. In the common pleas no issue had been taken upon the third defense but one of law by demurrer. In that form it stood before the district court. It was the right of the defendant to insist upon that defense, and that necessitated a decision of the demurrer; the appellate court, therefore, did not err in regarding the demurrer as before it for decision.

2. Did the district court err iu overruling the demurrer to the third defense ? The answer to this question depends entirely upon what effect is to be given that part of the final judgment, pleaded in bar to the present action, which is expressed in the words, “ without prejudice to a future action.” These words constitute a part of the former judgment dismissing the plaintiff’s petition. But it is claimed’ that the words “without prejudice” have no effect, as it it does not appear that the case came within any of the-grounds upon which it might, under section 372 of the-code, be dismissed without prejudice; and that, on the contrary, it appears that the case was so tried that under that section “ the decision must be upon the merits.”

We have not the record nor the report of the referee ilithe former ease before us, and can not tell on what ground the court dismissed the case without prejudice to a future-action. That case was brought before the plaintiff’s mortgage to the defendant in possession was paid, and such facts-may have been shown by the report of the referee, as induced the referee and court to regard that action as premature. We are bound to infer from the judgment rendered, since nothing to the contrary appears, that the facts of the-ease were such that the court would not have approved the report of the referee, unless it was such as to require or warrant a judgment without prejudice to a future action. But, however that may be, the actual judgment rendered does not appear to be one that is conclusive of the merits-of the case. To give it the effect of such a judgment would not only create that which does not exist, but might work a great wrong to the plaintiff’ by finally determining a just cause of action which the court did not adjudge against, him, and by misleading him to acquiesce in a judgment from which he would have appealed had it been regarded as conclusive. If the judgment was erroneous, the party aggrieved might have corrected it by a proper proceeding for that purpose. But so long as that is not done, and it remains acquiesced in by the parties, it must stand as it was-rendered, for it can not be collaterally impeached.

The judgment is an entirety, and if it has any validity, it must stand as rendered. If the judgment was so far against the law that it must be'regarded as void, then there was-no valid judgment on the merits, and it is, therefore, in legal effect, no better than a judgment without prejudice-If the dismissal without prejudice was void for want 01 power to make it, as is claimed, then there is no valid judgment, for there was no other dismissal than that which is without prejudice. The judgment pleaded in bar is not such a judgment as ought to have been, or might have been rendered, but never was; but it is the one actually rendered, which is without prejudice. Upon that judgment the party must stand, and, being without prejudice t« a future action, it is not a bar to the action to which it was pleaded. The district court, therefore, erred in overruling the demurrer to the plea. It follows that the judgment must be reversed, the demurrer sustained, and the cause remanded for further proceedings according todaw.

Judgment accordingly.  