125 P. 838 | Or. | 1912
delivered the opinion of the court.
No judgment can be available as an estoppel unless it is a judgment on the merits. 1 Freeman, Judgments (4 ed.) § 260. A judgment cannot be set up in bar of a subsequent action unless it was a final judgment on the merits, adjudicating the rights in litigation in a conclusive and definitive manner. 23 Cyc. 1126. The determination of a motion or summary application is not res adjudícala, so as to prevent the parties from litigating the same matters again in the more regular form of an action, especially if the matter affected by the motion was only incidental or collateral to the determination of the main controversy. 23 Cyc. 1119. In the case of Pruitt v. Muldrick, 39 Or. 353, at page 358 (65 Pac. 20, at page 21), the following language was used by this court:
“ ‘In order that a judgment may constitute a bar to another suit,’ says Mr. Justice Field in Hughes v. United States, 4 Wall. 232 [18 L. Ed. 303], ‘it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and it must be determined on its merits. If the first suit was dismissed for defect of pleading, or parties,*603 or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any'ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.”
Finding no error in the record, the judgment of the lower court is affirmed. Affirmed.