Robinson v. Howard

5 Cal. 428

Opinion

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.