Action for $15,000 damages for wrongful death.of Lloyd C. Stewart (not an employee of defendant) in Wichita, Kansas, alleged to have been struck at a public crossing by one of defendant’s engines. Defendant’s motion to dismiss was sustained and this.action was dismissed with prejudice. Plaintiffs have аppealed from the judgment of dismissal.
The question for decision is one of res judicata, namely: whether a second suit is barred by the dismissal оf a prior identical suit, “upon the grounds of the exercise of jurisdiction by this Court would constitute an undue hardship on Interstate Commerce”, when no appeal was taken from that judgment of dismissal.
The motion to dismiss this second action sets out the filing of the former action, the cоntents of the petition and the judgment of dismissal. It also alleged that no further action was taken by the parties in that case and that the parties are bound by *815 the final judgment dismissing said prior suit and are estopped by said prior final judgment. The motion to dismiss the first action stated as the grоunds, upon which it was sustained, “that the exercise of jurisdiction by this Court over this cause and this defendant would violate Article I, Section 8 of the Cоnstitution of the United States and more specifically would constitute an undu'e burden on interstate commerce.” It also alleged facts concerning the residence of the parties, the place of the accident and the names and residence of neсessary witnesses, some of whom were employees of defendant.
Obviously the judgment of dismissal in the first case was not a judgment on the merits of plaintiffs’ cause of action; and, therefore, plaintiffs claim the right to commence a new action within one year under authority of Section 516.230. (Statutory references are to RSMo and V.A.M.S.) The trouble with plaintiffs’ contention is that as the grounds for dismissal the Court decided plаintiffs had no right to maintain the action in the Circuit Court of the City of St. Louis and they did not appeal. In this situation, the rule is thus stated: “Where a valid and final рersonal judgment not on the merits is rendered in favor of the defendant, the plaintiff is not thereby precluded from thereafter maintaining an action on the original cause of action and the judgment is conclusive only as to what is actually decided.” Sec. 49, A.L.I. Restatement of Judgments; see also Sec. 53, especially Comment c. In explanation of this rule, it is stated: “A judgment for the defendant may be based upon thе ground that the plaintiff is not entitled to maintain an action in the State in which the judgment is rendered and not on a ground which would be applicаble to an action in other States. In such a case the judgment is on the merits to the extent that it will bar the plaintiff from maintaining a further actiоn in that State, but it is not on the merits so far as actions in other States are concerned. * * * Although, where the judgment for the defendant is not on thе merits, the plaintiff is not precluded from maintaining a new action on the- same cause of action, he is precluded from relitigating thе very question which was litigated in the prior action.” Restatement of Judgments, pp. 194-195. Likewise, it is stated in
Plaintiffs, howеver, say this judgment is void and, therefore,, is. subject to collateral attack, citing Gray v. Clement,
In Gray, v. Clement, supra, a life tenant sought partition between himself and remaindermen, which the. Court had no power to do. It was рointed out that the petition stated and the judgment itself recited plaintiff had the life estate and defendants had the remainder so that the judgment showed on its face “that the re
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lief granted was such as the court could not render in that class of cases.” The same thing was true in Nоyes- v. Stewart, supra. For requisites of a valid judgment See Restatement of Judgments, Sec. 4. That is not true in this case because the judgment shows its basis tо be that “the exercise of jurisdiction by this court would constitute an undue hardship on interstate commerce.” This was a question of constitutional law that the court had jurisdiction to decide. See Hayman v. Southern Pacific Co., Mo.Sup.,
Furthermore, the Mayfield case shows that the matter of whether and to what extent a state will entertain in its courts transitory action's arising in other jurisdictions'is a matter of state policy. Certainly our circuit courts have jurisdiction to construe such state policy and if they construe it incorrеctly that is a matter to be corrected on-appeal. In the comment under Sec. 4, the Restatement of Judgments has classified judgments as follows: “(1) those which are valid and will not be vacated or reversed in- further proceedings in the action and are not subject tо attack in independent proceedings in equity; (2) those which-are valid but may be vacated or reversed in further proceedings' in the action in the trial court or 'in an appellate court;' (3) those- which are valid and may not be vacated or reversed in further proceedings in the action but are sub j ect to attack in independent proceedings in equity; (4) those which are void and are subject tо collateral - attack.” Our conclusion is that the'judgment sought' to be collaterally attacked herein falls within type (2) if plaintiffs’ contеntions concerning it are correct. As to this type of judgment the rule is, Restatement of Judgments, Comment (a) under'Sec. 4: “A judgment is not void merely beсause it is erroneous and subject to be set aside by the court which rendered it or to- be reversed by a higher court in appellate proceedings.” We hold that the issue specifically decided by the Court in the first case, and upon which it based its -judgment of dismissal, is res judicata.
The judgment is affirmed.