Gorman v. Star Rebound Controller Co.

164 N.E. 771, 30 Ohio App. 230, 7 Ohio Law. Abs. 35, 1928 Ohio App. LEXIS 338

• Court: Ohio Court of Appeals
• Decided: December 3, 1928
• Docket: 9507
• Status: Published

Opinion

SULLIVAN, P. J.

We find upon examination, that the statement of claim filed in the lower court and the allegations of the petition filed in the Federal Court are substantial, in character and averments and it appearing that the parties are the same as well as the subject matter there is no question in our mind that the doctrine of res adjudicate. applies.

It is conclusive that had the plaintiff in the Federal action proceeded to trial the cause of action in the court below would necessarily have been included. This being so it is clear that the doctrine of res adjudicate operates.

The sustaining of the demurrer in the Federal Court results in a status as to the allegations of the petition that would .exist had the demurrer been overruled instead of sustained and the c,ase proceeded to trial, and from an examination of those allegations, together with the examination of the record in the case at bar, .there is no question in our minds but that the parties being the same, the subject matter being the same, and the matter having already been adjudicated, by the Federal Court, that the doctrine of res adjudicate impregnated the hearing in the court below and consequently the court was correct in its ruling.

It is unnecessary to quote a mass of authorities but we cite:

Hull vs Norris, 14 O. App. 108, affirmed 100 O. S. 521. Covington Bridge Co. vs Sargent, 27 O. S. 233.

Holding these views, the judgment of the lower court is hereby affirmed.

Vickery and Levine ,JJ., concur.