Robinson v. Howard
Before: Heydenfeldt
Synopsis
A judgment upon demurrer is not always a bar to a subsequent action. It is so only where it determines the whole merits of the case.
Where the answer shows that the demurrer was to the validity of the contract which gave rise to the claim, and this averment is found to be true as alleged, by the Judge at nisiprius upon inspecting the record of the case—the judgment upon demurrer is a bar to the suit.
Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J. concurred.
There can be no doubt that the first judgment set up in the answer was a bar to this suit. A judgment upon demurrer is not always a bar to a subsequent action, but only when it determines the whole merit of the case.
Here the averment of the answer shows that the demurrer went to the validity of the contract which gave rise to the claim, and this averment is found to be true as alleged, by the Judge at nisi prius, upon inspecting the record of that case.
Judgment affirmed.
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