
    William A. Ewing v. McNairy & Clafflin.
    1. Where a party hy his own mistake, and without any fault of the adversary party, takes judgment hy default for a less sum than the amount due on his claim, he cannot maintain a second action to recover the remainder:
    2. Where the petition in such second action sets forth the mistake in the former suit, in such form as to show that it might or might not have been a mistake in matter of description, destroying the technical identity of the causes of action, but alleges that the causes of action are in fact the same, the petition will be held bad on demurrer.
    Error to the district court of Lucas county.
    The original action was brought by McNairy & Clafflin, against William A. Ewing, to enforce a lien against a lot in the city of Toledo, for its proportion of an assessment made for a street improvement. On demurrer to the petition judgment was given for the plaintiffs, McNairy & Clafflin, and on petition in error the district court affirmed the judgment. And the only question now to be decided is whether the original petition sets forth a good cause of action.
    The petition sets forth that the plaintiffs were the assignees of the contractor under a certain ordinance to do the work; that they completed the work; that the cost thereof was a certain specified amount; that the pro rata portion thereof assessed upon said lot was $1,365.90 ; and that the same had not been paid. The petition then proceeds as follows:
    “ Plaintiffs further say that heretofore, to wit: on the 18th day of May, 1867, they commenced an action wherein William A. Ewing, the present defendant, was made defendant, and filed in the court of common pleas of Lucas county, Ohio, a petition, the object and purpose of which was, among other things to charge said land described as lot No. 500 in Stickney’s addition to Toledo, with a certain assessment alleged, in said petition, to have been made on said lot by the city council of Toledo to pay the costs and expenses of improving Summit street, between Magnolia street and the east corporation line of said city, in accordance with the city ordinance passed Feb. 10th, 1866.
    “ Said petition stated the amount of said assessment to be $365.90, and no other or greater sum was claimed in said petition, and the court was asked to enforce the lien of the plaintiffs to the extent of that sum with the interest and penalty, and for no other or greater amount. No answer to said petition was filed by defendant, William A. Ewing. No proof was adduced by plaintiffs in that action to maintain the allega, tion of the amount of the claim as stated in said petition at $365.90.
    “ Plaintiffs aver that through a clerical error the assessment was stated to be $365.90 ; whereas, in fact, it was $1,365.90 ; and the sum of $1,000 was omitted from the amount of said assessment, and the lien of the assessment was in that proceeding only partially enforced; that is to say, to the extent of $365.90.
    
      “ A .decree of said court was obtained to enforce the lien described in the petition filed May 18, 1867, by sale of the premises; and no decree was ever made by said court to establish or enforce any lien on said premises for said sum of $1,000, which remains still due and unpaid. Afterward said William A. Ewing paid to plaintiffs’ attorney the said sum of $365.90, and interest and penalty thereon, and the judgment of the court was released and satisfied.
    “ Plaintiffs therefore pray that an account may be taken of how much is due on said lot on account of said assessment; that the owner may be ordered to pay the same, and in default thereof said lot may be sold, and the proceeds thereof be applied, first, to the payment of the amount so found to be due on said assessment, with interest and the statutory penalty of five per cent., and the residue, according to the further order of the court, after first paying costs of this proceeding.”
    
      Charles Pratt for plaintiff in error:
    1. The well-known principle of law, that but one recovery can be had upon the same cause of action, is fully and clearly applicable to this case. The amount due upon said assessment was adjudicated and determined in the first action and could not again be inquired into.
    “ Whenever a matter is adjudicated and finally determined, it is considered forever set at rest.” Fishli v. Fishli, 1 Blackford, 360, 361.
    Here McNairy and Clafflin commenced their suit on the assessment, made their claim under it for a certain amount, recovered their judgment, and received their pay for, and satisfied the same; and this judgment stands as the judgment of the court, acted upon by both parties in its payment and satisfaction, and now they bring this second action, alleging that by their own clerical error they “ omitted ” the sum of one thousand dollars in commencing their former suit, and ask that they may have a new recovery for the amount thus “ omitted.”
    
    2. This assessment was one and indivisible, an entire demand, as clearly a single cause of action as a promissory note, and a plaintiff could not divide it so as to “ partially enforce” it in one action, and then at a subsequent time enforce the balance in another action. Smith v. Jones, 15 Johns. 228; Farrington & Smith v. Payne, 15 Johns. 432; Willard v. Sherry, 16 Johns. 121; Phillips v. Berick, 16 Johns. 136; Jackson v. Colver, 1 Wend. 487; Guernsey v. Carver, 8 Wend. 493; Miller v. Covert, 1 Wend. 487; Stein v. Steamboat Prairie Pose, 17 Ohio St. 471.
    The whole case is stated in the petition of McNairy and Olafflin, so that no answer was required, and the questions involved weye properly raised on the demurrer. It is shown in the petition that they had once sued on the same assessment for apart of the same, recovered their judgment, and received their pay.
    But counsel may say that whereas the assessment in the first petition was described as an assessment for $365.90, it was a misdescription, and that there was in fact no such assessment, and if we had answered in that case denying the assessment, they could not have given any evidence under their petition in that case. But this position is founded on the idea that the allegation of amount is the only one upon which tobase the identification. This is not correct. The assessment must be identified by description aside from the amount, and if so identified the statement of amount is only important for the purpose of fixing the amount of recovery. The assessment is so identified.
    Now, after that judgment has been rendered-and paid, they come into court by a second and independent suit for the purpose of showing that they have made a mistake in their petition; that through their mistake — not that of the clerk, the court, or the defendant — they have recovered judgment for a less amount than the one they should have claimed, and they seek in this second and independent suit to recover the balance. They have sued upon and recovered judgment for a$>wrt of the assessment in one suit, and now sue and seek to recover judgment for another part of the same assessment in another suit. This is their own showing of the case, and we contend that what they ask is beyond the power of the court and contrary to every legal principle. When a contract, note, or other instrument is sued upon and judgment rendered, such instrument becomes merged in the j udgment. This assessment became merged in the judgment rendered in the first case. It no longer remained as a thing upon which to found a suit. A discharge of that judgment was a discharge of the assessment. The amount due upon the assessment was conclusively fixed and determined by judgment. Both parties were bound by that determination.
    It may be contended that the defendant ought in equity to be made to pay the full amount of the assessment, and that upon this ground the district court did right in permitting the recovery. But that is a question which cannot be raised here. The defendant might suppose he had a defence to the assessment which would enable him to reduce the amount. But when sued for the assessment he finds the amount claimed against him one which he is content to pay, and he accordingly allows the plaintiff to take his judgment and pays it under the very reasonable supposition that there is an end of the matter. The plaintiff has made his claim, obtained his judgment, and the defendant has paid it. Now if the same party can bring him into court again because he has claimed too little, what amount of additional claim must he make to obtain jurisdiction? If $1,000 will do it, $100 would do it just as well, and the plaintiff may make as many “ clerical mistakes” and “ partially enforce”the claim as often as shall suit him, and the defendant must pay for another man’s mistakes, in the increased costs, attorney’s fees and trouble of a multiplicity of suits upon the same cause of action. No such absurd doctrine can ever be established. This court, equally with other courts, has always maintained and upheld the binding and conclusive force of final judgments, and has uniformly refused to grant relief, in equity or otherwise, whore there was either mistake or neglect of the party seeking it or Ms attorneys. The following and many other cases may be cited: Botkin et al. v. Commissioners, etc., 1 Ohio, 381; Stein v. Stein, 3 Ohio, 19; Abbott v. Hughes, 3 Ohio, 278; McCoy v. U. S. Bank, 5 Ohio, 548 ; Libby v. Pa/rhs, 4 Ohio, 469 ; Green v. Hodge, 3 OMo, 486; Same, 6 Ohio, 80; Pollard v. Collier, 8 Ohio, 43.
    
      T. Dunlap and M. R. & B. Waite for defendants in error:
    Is the whole matter "res adjudicate ” by mason of the decree of the court in the first suit ?
    We think not. First, because the assessment set forth and described in the first action never was, in fact, made; and if an answer had been filed and trial had, no evidence could have been adduced to support the claim.
    The assessment for $1,365.90 could not have been given in evidence under the description of an assessment for $365.90.
    The question now presented to the court was not tried by them in the first action; and, under the pleadings, could not have been passed upon.
    Now, in a plea of former recovery, it is necessary to state that the cause of action is such as was passed upon, or might have been tried in a former suit.
    The point I wish to urge upon the court is, that the $1,365.90 assessment could not have been tried in a former suit under the pleadings on which the decree was rendered. See Duncan v. Holcomb, 26 Indiana, 378. Gregory, chief justice, says in that case: “ It is only the matters involved in the issues made by the pleadings in a cause that are considered ‘ res adjudicate.’ ”
    We cite to the same point the case of the C. & S. R. R. Co. v. Watson et al., 26 Indiana, 50: “ An answer of a former adjudication must show, either that the matter in controversy was actually determined in the former suit, or that it might have been litigated under the issues then joined.”
    The existence and validity of the assessment for $1,365.90, on which suit is now brought, were not in issue in the prior action, and could not have been litigated on the pleadings.
    This is not a suit for unliquidated damages, but a proceeding to enforce a lien, the amount of which is fixed and certain, and determined by ordinances of the city council as accurately and with as much deliberation as are the judgments of a court of record; and a description of an assessment in pleading is required to be accurate in amount, as much so as a description of a judgment.
    It may be said the suit first begun and determined was intended to be brought on the same assessment.
    I take it that the court will not vary the rule in a case like the present, and will not make a pleading conform to intentions of the pleader, for the purpose of making a case in his favor, or for the purpose of making a case against him.
    This case, then, stands as between plain men, of honest intentions, the same as if a voluntary payment of $365.90 had been made by Ewing to plaintiffs, on account of their claim of $1,365.90.
    Suppose the mistake to have been mutual, and no undue advantage to have been sought by either side: are the court powerless to render a decree sustained by all the equities of the case ?
    Shall Ewing have the advantage over his neighbors of a good Nicholson pavement free of cost, while all other owners pay in proportion to the foot front ?
   Welch, J.

As we understand the case made by the original petition, this was an action seeking the correction of a mistalee, made by the plaintiffs themselves, or their attorney, in taking judgment in a former suit upon the same muse of action. If such be the true reading of the petition, it is quite evident that the court below erred in holding it to be a good petition. By the first action the subject-mattei had Bicorne res adjudicada,. The judgment in that action was a bar to any future action, unless it could be avoided for some fraud or fault of the defendant, or at least, for some mutual mistake of the parties. No such fraud or mistake is alleged. The plaintiffs simply seek relief against their own carelessness, or that of their attorney, without showing any fault or omission by the adversary party. Such relief the law never administers. By refusing to relieve parties against the consequences of their own neglect, it seeks to make them vigilant and careful. On any other principle there would be no end to an action, and there would be an end to all vigilance and cafe in its preparation and trial.

Counsel for plaintiff in error, however, do not base their argument upon the case apparently made in the petition. They say that this was not a second action, to correct a mistake made in a former action brought upon the same cause. They claim that there were two assessments, one .for $365.90, and the other for $1,365.90 ; or rather, that the defendant is estopped from denying that there were two such assessments. The plaintiffs, they say, have recovered upon the first-named assessment, and have now brought their action, for the first time, upon the assessment for $1,365.90. Finding that the assessment for $365.90 was a raere fiction, although both parties are estopped to deny its actual existence, they are willing, although under no obligation, to give credit for its amount upon the real assessment, the $1,365.90, because, although the assessment of $365.90 was a mere fiction, the payment of the amount was no fiction.

But can the plaintiffs estop the' defendant from asserting what they themselves allege in their petition to be true. Can they assert the identity of the causes of action, and estop the defendant from doing the same thing ? Can they, on demurrer to their own petition, deny its truth % Possibly, under our code, which requires a party to set forth the actual facts of his case, and verify them by his oath, cases may be supposed where this would be admissible. In such cases, how ever, it seems to me that the party should, in the same pleading in which he sets forth the actual facts, do what the pleader has failed to do here — insist upon the benefit of the estoppel. We are relieved, however, from deciding any such questions, as we are satisfied that the case made in the petition does not show the technical falsity of the allegation therein, that the former suit was for the same cause of action. Had the plaintiffs seen proper to bring their actjon upon the assessment alone, omitting all notice of the former suit, and thus given the defendant the opportunity to plead and produce the record of the former proceeding, we could then have determined, from its inspection, whether the alleged mistake was in matter of essential description going to the identity of the cause of action, or a mere mistake as to the amount due. Instead of the record we have only the plain tiffs’ statement of the former proceeding. They say it was an action for the same cause. Now, from the description of the cause of action contained in the petition, this may or may not be technically true. The petition in the former action might well set forth the cause of action without specifying the amount of the assessment on lot 500, and thus not make that amount matter of description. It was sufficient in that action to set forth the cost of the improvement, the aggregate amount of the appraisement of the lots, and the appraisement of this particular lot. Erom these facts the amount assessed against the lot in question would sufficiently appear, without directly giving the same; and if the amount were by mistake set down as $365.90, instead of $1,365.90, it might be stricken out as surplusage. Indeed, it does not at all seem probable to us, that in any proper form of stating a cause of action on such an assessment, an action to enforce a lien against property for its pro rato of a common burden, a mere mistake as to the amount chargeable against a lot, can be regarded as matter of essential description, so as to destroy the identity of the cause of action.

We think, therefore, that the district court erred in overruling the demurrer, and that the judgment should be reversed.

Judgment reversed, demurrer sustained, and causé remanded for further proceedings.

Scott, O.J., and White, Day, and MoIlvaine, JJ., concurred.  