By the Govjrt —
Atwateb, J.
— The Plaintiffs, Gerrish & Brewster, brought their action on a replevin bond, against the Defendants, which had been executed by them in favor of the Plaintiffs. The Defendants among other things, plead a former judgment in favor of the Defendants, between the same parties and for the same cause of action, in the District Court in and for Nicollet County. The Plaintiffs replied, alleging that in said action the merits were not litigated, but that the said case was disposed of, upon the ground that the complaint did not state facts sufficient in connection with said bond, to constitute a cause of action.
This issue was found in favor of the Plaintiffs, by the Judge who tried the cause, (a jury having been waived,) but j udgment was rendered thereon in favor of the Defendants. The .Plaintiffs appeal to this Court. The only question here presented is, whether the above plea, being found true, constitutes a good defence.
That a judgment in a former suit between the same parties, and upon the same matters, constitutes a good plea in bar is *60too well settled to need argument or tbe citation of authorities. The Plaintiffs here contend, that the matters in issue in the present suit were not litigated in the former suit. With reference to that former suit the Court below has found that the judgment therein “was rendered for costs only, and not on the merits involved in said action ; that said judgment was rendered on a motion for judgment on the pleadings by said Defendants, and without the introduction of any testimony or the determination of any issue, save only that said Plaintiffs5 complaint did not contain a cause of action.” What the defect in the pleadings was, does not specifically appear. If the Court below adjudicated upon the bond itself, and held it void for any reason, that would perhaps form a bar to this action, while the judgment remained unreversed. But the finding of the Court below precludes the supposition that such was the case, as it is expressly stated that the judgment was not rendered on the merits involved in said action. The defect, therefore, it is reasonable to presume, must have consisted in the insufficiency or informality in the statement of the cause of action. If the Plaintiffs in the present suit have stated a good cause of action, it is difficult to see how it can be barred by the proceedings in the former suit, for it appears from the finding of the Court, that not only has it not been litigated, but has not even been presented in Court, as the former judgment was for costs only, on the ground that the complaint did not state any cause of action. It is true that the suit was between the same parties, and upon the same subject matter, but the matter has not been litigated, nor even presented in a shape that it could be litigated, as the Plaintiffs failed to state a legal claim against the Defendants. Where the cause has gone off upon some defect, which precluded an inquiry into the merits, the judgment is usually no bar to a second action. 4 Cow. & Hill's Notes to Phil. Ev., p. 9, note 12. In 2 W. Black., 3 Wils., 304, the principiéis conceded, that if the real merits of the second action have not been decided in the first, the prior judgment is no bar. I do not think the Plaintiffs here are in any worse position in regard to this former suit, than they would have been had the Defendants demurred to the declaration; and in 1 Chit. Plead., 221, it is *61stated that “if the Plaintiff mistake his cause of action, and the Defendant demur, the Plaintiff is certainly not precluded from commencing a fresh action, and may reply to a plea in bar of the judgment on demurrer, that the same was not obtained on the merits,” and see authorities there cited, and Knox vs. Waldborough, 5 Greenl. Rep., 185, in which it is 'held that “a decision of the Court in favor of the Defendant, upon an agreed statement of' fact, and a nonsuit of the Plaintiff entered, and judgment thereon. for the Defendant for his costs, pursuant to such agreement, constitute no bar to a subsequent action for the same cause.” And in the text of Ghitty above cited it is stated that “if the Plaintiff demur to the piba in bar upon the merits, and such plea be sufficient, in that case also no second action can be commenced; but if the plea were not sufficient, and the judgment against the Plaintiff was on the defect in his declaration, the former judgment against him will be no bar.” And in 1 Greenl. on Kv., % 529-30, it is stated that “it is only where the point in issue has been determined, that the judgment is a bar. If the suit is discontinued, or the Plaintiff becomes nonsuit, or for any other cause there has been no judgment of the Court upon the •matter in issue, the proceedings are not conclusive. So also, in order to constitute the former judgment a complete bar, it must appear to have been a decision upon the merits ; but if the trial went off on a technical defect, &c., the judgment will be no bar to a future action.” And analogous to the above is the practice in criminal cases, in -which if the former acquittal was for want of substance in setting forth the offence, it is no bar to a second prosecution. 3 Green. Evidence, § 35. And see Hughes vs. Blake, 1 Mason, 515; Snider vs. Croy, 2 John., 227; Seddon vs. Tutop, 6 Durn. & East., 607; 4 Durn. & East., 147; Morgan vs. Bliss., 2 Mass., 111; Bridge vs. Sumner, 1 Pick., 371; 4 Gill. & Johns., 345; Stevens vs. Dunbar, 1 Black., 56; Kendal vs. Talbot, 1 A. K. Marsh, 321; Hamel vs. Laurence, Ib., 330; 1 Mod., 307; Phillips vs. Berrick, 16 John., 137; Wheeler vs. Van Houten, 12 John. 311; 8 Pick., 113.
We are cited by Respondents’ counsel to Sec. 94, Comp. Stat., p. 544, but that has no application to the present case. The Appellants seek no relief from the former judgment, nor *62indeed does it appear that they are entitled to any, or could have obtained any bad they applied within a year from its rendition. If, as the Court has found, no cause of action was set forth in the complaint, the judgment for the Defendants therein was correct. But because the statute requires a party to move within one year in order to he relieved from a judg-' ment, no valid argument can be drawn therefrom, that a party is wholly precluded from commencing a new action, nor that it must necessarily be commenced within one year from the time of rendition of judgment on the former action. The Code has introduced no new rule upon this point, since the statutes of many, if not most of the States, have long contained similar provisions to that above referred to.
Nor do the authorities cited sustain the position assumed by Respondents’ counsel. In Story's Eq. Pl., § 180-2, it is stated, that “if the judgment of a Court of ordinary jurisdiction has finally decided the rights of the parties, that judgment may in general be pleaded in bar of a bill in equity.” And, “it a matter has been already investigated in a Court of Justice of competent jurisdiction, according to the common and ordinary rules of investigation, a Court of Equity cannot, and ought not, to talce upon itself to enter anew into the merits of the case.” The author here only says that where a Court has “finally decided the rights of parties,” such fact will constitute a good plea in bar to a bill in equity. And that “if a matter has been already investigated, that a Court of Equity cannot and ought not to take upon itself to enter anew into the merits of the case.” The doctrine here stated is undoubtedly well settled law, but not applicable to the case at bar, since it is manifest that no Court has finally decided the rights of these parties, nor is the Court ashed to enter anew upon the merits, since the merits were not considered by the Court in the former action, The case in 7 Cranch, 565, only decides that a record of former recovery, supported by parol proof that the former suit was for the same cause of action, is admissible under the general issue. In Hess vs. Beekman, 11 John, 457, the Defendant pleaded a former suit before the same justice, between the same parties for the same cause of action, in which the merits of the *63Plaintiffs bad been fairly entered into, &c. The Court say, “in this case there was no jury on the former trial; but the merits were fairly entered into and investigated and finally submitted to the justice,” and the Plaintiff was held concluded by the former trial. No further statement is needed to show the difference between that case and the present. And the cases cited by the Court in that case (5 John., 346, 2 John, 181, Ib., 191,) are equally inapplicable. In both the last named cases, the Court held the plea of former recovery good, on the ground that the same matter had been litigated. And in 5 John, 346, the only point decided was, that a Plaintiff in a Justice’s Court may withdraw and be nonsuited, before the jury give their verdict. The cases in 15 John., 129, 432, and 15 Wend., 557, and 5 Hill., 408, are not applicable to the case at bar. And in short, we find no case where it has been decided, that a judgment in a former suit, in which the merits have never been submitted to a Court or jury, but which has gone off upon a defect in the statement of the cause of action in the declaration, constitutes a bar to a second action.
The judgment below is reversed and a new trial granted.
FlaNdeau, J.
— The former suit and judgment was no bar to the present action, as my brother Atwater has clearly shown. But it appears from the Appellants’ brief that the Defendants insisted in the Court below that the plea, if not good as a bar, could be urged in abatement so long as the former judgment was unpaid. Even if this unpaid judgment for costs could have been pleaded in abatement under any circumstances, the Defendants have waived such plea in this case by pleading to the merits. Gordon vs. Clark, 6 How. Pr. R., 449; Graham’s Prac., 2d Ed., 224. The-proper way to have taken advantage of the former j udgment was to move for a stay of proceedings in. this action until the same was paid. Kentish vs. Totham, 6 Hill., 372; Perkins vs. Hinman, 19 John., 237; 1 Cow., 138; 3 Cow., 22; Id., 381.