
    Martin et al. v. Roney et al.
    In an action by M. against the county commissioners to enjoin the assessment of the costs and expense of a road improvement, on the ground that the commissioners had not jurisdiction to order the improvement to be made, it was determined upon a trial on the merits that the commissioners had such jurisdiction.
    Afterwards the same parties brought an action against the commissioners to enjoin the same assessment for want of jurisdiction of the commissioners for a reason not stated in the former action.
    
      Seld: That the question of jurisdiction of the commissioners was conclusively settled between the parties by the judgment in the first action.
    Error to the District Court of Brown County.
    The plaintiffs in error brought their action in the common pleas in November, 1877, to enjoin the defendant in error, Roney, as auditor of Brown county, from entering on the tax duplicate of the county, an assessment made by the county commissioners to pay the cost and expense of the improvement of a road; and to enjoin the defendant Drake, as treasurer of the county, from collecting the assessment. The petition states numerous facts pertinent tó the case, and amongst others: “ That the petition presented to said county commissioners praying for the construction of said Ripley and Arnheim free turnpike road improvement, was never at any time signed by a majority of the land owners resident in said county of Brown, whose lands were afterwards on said 1st day of September, 1866, by the viewers and engineer returned as benefited, and for assessment to pay the expenses of the same; and that the order of the said county commissioners made on the 7th day of September, 1866, for the construction of said road improvement, was then and at all times utterly null and void.”
    To this petition the defendants answered amongst other things, that on the 7th day of February, 1871, plaintiffs brought an action against the then auditor and treasurer of the county, seeking to have the same assessments declared void and to enjoin the collection thereof, upon the same facts and for the same causes as those set forth in the present.action; and that the action commenced in 1871, resulted in a judgment for the defendants therein.
    The record of the action of 1871 is in evidence, from which it appears that the plaintiffs in their petition alleged: “That said county commissioners never had jurisdiction to order said improvement to be made.” This averment was denied by the answer and the final judgment in the action was for the defendants.
    Upon a trial in the district court on appeal, it was found that the defense above alleged was true, and judgment was thereupon given for the defendants, in this action.
    The petition in error here is to reverse this judgment.
    
      G. Bambach, for plaintiff in error.
    
      Moore <f- Sarding, for defendants in error.
   McCauley, J.

The question arising upon the record is, whether or not the judgment in the case of Burgett and others, the plaintiffs in error, against Parker, the county treasurer, was a bar to the action in the common pleas.

The petition and answer in that action put in issue the jurisdiction of the county commissioners to order the improvement to be made. The want of jurisdiction was alleged in the petition as a fact, and the defendants not asking to have the particulars stated from which a want of jurisdiction followed, merely denied the want of jurisdiction. This issue was determined in favor of the defendants.

The same parties now who were plaintiffs in that action again call in question tbe jurisdiction of the commissioners to order the improvement, by alleging specifically the facts that show a want of jurisdiction. That question having once been determined between the parties, can not be re-opened by the plaintiffs, upon a state of fact more specifically stated to make the same cause of action.

The question would be the same if the jurisdiction of the commissioners to order the improvement, had been put in issue in the first case upon a state of fact wholly different from the state of fact alleged in the second action — provided that the facts in the action were sufficient in law to authorize the relief demanded. It is not allowable to allege certain facts as a cause of action and after judgment on the merits, to allege a different state of facts to support a demand for the same relief.

If the facts of a case are inconsistent the plaintiff must elect which he will rely upon, and having done so a judgment thereon is final.

The effort now to set aside the order of the commissioners for want of jurisdiction is a repetition of the question made and determined in the action of 1871.

Judgment affirmed.  