Plaintiff, by its petition for rehearing, raises only the question of the effect of our affirmance of the dismissal of plaintiff's complaint with prejudice. The district court sustained the demurrer to plaintiff's amended complaint, plaintiff refused to plead further; the case was dismissed with prejudice and we affirmed the judgment. State of Utah v.California Packing Corporation, 105 Utah 182, 141 P.2d 386. The state now contends that the dismissal of this action *Page 193 should not be a bar to its maintaining another action based on the facts alleged in its original complaint and asks us to so hold.
The dismissal of plaintiff's action, although with prejudice, does not bar plaintiff from maintaining another action against the defendant based on the same facts alleged in the original complaint providing the new complaint supplies new and additional facts so that the new complaint alleges 1, 2 different facts and states a cause of action. The dismissal of the action is with prejudice only to the extent that it determined once and for all that the complaint attacked by demurrer did not state facts sufficient to constitute a cause of action and bars the maintenance of a new action on the same facts which were alleged in the complaint which was dismissed.
Section 104-29-1, U.C.A. 1943 provides that 3
"An action may be dismissed without prejudice, or a judgment of non-suit entered"
under the conditions specified in the five sub-divisions which followed. Section 104-29-2 provides that
"In every case, other than those mentioned in the next preceding section, [the] judgment must be rendered on the merits."
A dismissal of an action after a demurrer has been sustained and plaintiff has refused to plead further is not mentioned in Section 104-29-1 as a ground for a "dismissal without prejudice" so it must come under Section 104-29-2 and be "with prejudice." This result is not in any way affected by Section 104-30-1, which merely provides a final judgment dismissing the complaint does not prevent a new action for the same cause of action unless it expressly declares or appears from the judgment roll that the judgment was rendered upon the merits. We are not here concerned with how it must be made to appear but under what state of facts should a judgment prevent the bringing of another action. *Page 194
It is well settled, in the absence of statutory provisions to the contrary, that where a demurrer to the complaint is sustained on the ground that it fails to state facts sufficient to constitute a cause of action, and the defendant refuses to plead further, and the court dismisses the action 4-8 for that reason, such judgment of dismissal will prevent the maintenance of a new action for the same cause of action where the allegations in the two complaints are substantially the same, and no substantially material new facts are alleged in the new complaint. This is true even though the court was incorrect in holding that the original complaint did not state a cause of action. 2 Freeman on Judgments 1572, Sec. 747; Wade v. Peters, 89 Or. 233, 173 P. 567, 13 A.L.R. 1100, also note on this question at the end of this case in 13 A.L.R. 1104, also supplemental note on this question in 106 A.L.R. 437. On this point the courts are practically unanimous and it is clear that to that extent such a judgment is a judgment on the merits. It is usually recognized by the courts and writers that a judgment on a question of fact is res adjudicata of that fact in another action between the same parties, even though it does not involve the same cause of action, but on a question of law, a judgment is res adjudicata only in the same cause of action. See 38 Yale Law Journal (1928-29) 299, which is an article written by Robert von Moschzisker on Res Adjudicata; Kellerman's Estate,242 Pa. 3, 88 A. 865; Havir's Estate, 283 Pa. 292, 129 A. 101. A judgment on demurrer determines only questions of law and not questions of fact. Although it is often said that on demurrer the demurrant admits all facts well pleaded for the purpose of the demurrer, in reality he does not admit anything but merely says: Even if everything stated in the complaint were true it does not state facts sufficient to constitute a cause of action. 38 Yale Law Journal 319.
On the other hand, it is usually held that under the facts assumed above where, in the first action, the demurrer is sustained on the ground that the complaint failed to allege *Page 195 some essential fact necessary to constitute a cause of action and another action is commenced wherein the 9 essential allegation omitted in the first action is fully supplied in the second, the judgment in the first action is no bar to the second even though both suits were brought to enforce the same right and the plaintiff in the first action might have amended his complaint to include the omitted essential allegation. This for the reason that the merits of the cause as shown in the complaint in the second action were not passed on in the first. As said in Gould v. Evansville C.R. Co.,91 U.S. 526, 534, 23 L. Ed. 416, 419:
"* * * but it is equally well settled, that, if the plaintiff fails on demurrer in his first action from the omission of an essential allegation in his declaration which is fully supplied in the second suit, the judgment in the first suit is no bar to the second, although the respective actions were instituted to enforce the same right; for the reason that the merits of the cause, as disclosed in the second declaration, were not heard and decided in the first action."
In Wilson v. Lowry, 5 Ariz. 335, 52 P. 777, 778, the court said:
"* * * the appellant having failed on demurrer in his first cause of action from the omission of an essential allegation in his complaint which is fully supplied in the second suit, the judgment in the first suit is no bar to the second, although the respective actions were instituted to enforce the same rights."
Mr. Justice Cardoza said in Heyman Cohen Sons v. M. LurieWoolen Co., 232 N.Y. 112, 133 N.E. 370, 371:
"A former judgment, stated in the answer and admitted in the reply, is pleaded as a bar. We think it fails of that effect. The former judgment was on demurrer. The defects in the first pleading [were] corrected in the second."
In Wade v. Peters, supra [89 Or. 233, 173 P. 568, 13 A.L.R. 1100], the court quotes with approval from Spicer v.United States, 5 Ct. Cl. 34, as follows: *Page 196
"After a somewhat extended review of this branch of the law, I am inclined to think that no case can be found, and certainly none in the federal courts, where a judgment rendered on demurrer, alleging the want of a material fact in the declaration, has been deemed a bar to a second action presented by a declaration wherein the material fact omitted from the first is sufficiently averred. The concurrent ruling of both the American and English courts seem to be that a judgment rendered for the want of a specific fact in the declaration is not a judgment upon the merits."
See also Freeman on Judgments, supra, at pages 1515, 1516; Annotations in 13 A.L.R. 1100, particularly at 1109 and division commencing at page 1113, and the supplemental annotation of this subject in 106 A.L.R. 437, division commencing at page 444 andRost v. Kroke, 195 Minn. 219, 262 N.W. 450, 106 A.L.R. 434, which is the case preceding the annotation; Abbott v. Bean,295 Mass. 268, 3 N.E.2d 762; Newhall v. Hatch, 134 Cal. 269,66 P. 266, 55 L.R.A. 673.
There are some cases which hold contrary and Robert von Moschzisker in 38 Yale Law Journal at page 319 criticises this rule and says:
"Judgments entered under such circumstances should not only be accounted as decisions on the merits, but should bar future litigation of the same cause both as to the issues raised in the first case and also as to all issues of fact that might have been pleaded by defendant, for since he failed to take advantage of an express opportunity to state his case, the law will assume he had none to plead."
Logically there is much force to his argument, but in practice it is often quite important to a litigant to know what the law is on a proposition involved in his case before he presents it to the jury. In order to do so he must plead his case so as to raise that issue, and if the trial court rules against him, then he must stand on his pleadings and take a dismissal in order to appeal to the higher court, but if the higher court also rules against him, and that decision on demurrer is res adjudicata of that cause of action, so that he cannot maintain a new action even though he *Page 197 alleges additional facts, then he will be deprived of the opportunity of trying his case, knowing what the law is on that subject. The better rule therefore, as well as the one sustained by the weight of authority, is that a dismissal of an action after a demurrer to complaint has been sustained and plaintiff has failed to further plead, is with prejudice to and prevents the maintenance of a new action only where the facts alleged in the two complaints are substantially the same; but the dismissal of the former action is no bar to the maintenance of a new action where the demurrer is sustained because the complaint failed to state facts sufficient to constitute a cause of action, and the necessary facts omitted in the first complaint are supplied in the second, so that the complaint in the second action does state a cause of action.
We hold, therefore, that the judgment below, heretofore affirmed, is on the merits only to the extent hereinabove indicated and the petition for rehearing is denied.
WOLFE, C.J., and McDONOUGH, J., concur.