On a motion for a rehearing,
Bakewell, J.,delivered the opinion of the court.
On the hearing of this cause, owing to the pressure of circumstances, defendant’s counsel not only submitted the cause without oral argument, but found himself compelled, in his written argument, to confine himself to little more than a brief statement of authorities. He has, since the decision of the cause, filed a motion for a rehearing, and.he now submits, in support of his motion, a very carefully pre*192p>ared statement and argument, which deserve, and have-received, attentive consideration.
The city engineer made two assessments of the costs of certain sewerwork. The first assessment was bad, because it-embraced the cost of work done outside the limits of the-sewer district. On the special tax bill first issued suit was-commenced, and judgment was for defendant. The city-engineer then made a second and correct assessment, and a new special tax bill was issued, the one filed as the cause of action in the present suit. The only defense is resadjudicata. It is not pretended that plaintiff was paid. It-is not denied that the work was done, was worth the money, that defendant’s property received the benefit of it, that the work was done only once, and that plaintiff in this action only seeks to recover for so much of the work under the contract as was done within the sewer district, and as-constitutes defendant’s pro rata of that part of the work, chargeable to his property, if the facts in evidence establish, such a charge.
The first assessment being erroneous, we think that the-engineer had power to make a second and correct assessment. In Kiley v. Cranor, 51 Mo. 542, the tax bills were-erroneously certified before the contractor had completed the work. The court held a substantial compliance with the-law sufficient; that the street was macadamized, defendant’s, property received the benefit, and was chargeable with the amount assessed in the frontage. And in Kiley v. Oppenheimer, 55 Mo. 376, the court holds that a special tax bill may be certified anew, to correct errors in the certificate.
The object of this suit "was to obtain a special judgment-against the property benefited. The doing of the work would not entitle the plaintiff to this, nor to a judgment of any description. He must have a special tax bill. If the cause of action is that which it is necessary to state, in point of law, to support the action, then the tax bill is the cause of *193action. There is no privity of contract between plaintiff and defendant, and the only reason that a bill of this kind is admissible against the property of any one is the force of the statute which gives it this operation. It is held that no personal judgment can be rendered on such a bill. Stadler v. Roth, 59 Mo. 402. A mistake in the name of the owner does not vitiate the bill, and the law on the subject must have a fair and liberal construction, so as to give-effect to the obvious purpose of the enactment. City v.. DeNoue, 44 Mo. 137. If the work and labor done is the cause of the action, in a remote and improper sense, it is-evident that the tax bill itself is the cause of action in a proper sense, as a promissory note is the cause of action in an action on a note. So that the cause of action in the first and second suit were not the same.
The issues in the two suits were not the same. The question as to whether the work was done and was worth the amount charged was an issue, we are told, in the first suit, because the general issue is always supposed to be pleaded before a justice, and nothing is admitted where a defense is made and no pleadings required by law. Now, sometimes several issues of law and fact are presented for the consideration of the court in the same proceeding, and all issues of law and fact necessary to be determined are completely disposed of by final judgment. But the pleadings alone will not determine, always, what is res adjudicata; for a matter may be res adjudicata not distinctly and specifically put in issue by the pleadings. The real question always is, what was tried and settled in the former suit? Bigelow v. Winsor, 1 Gray, 299. Two things are essential to res adjudicata: First, that the issue in the second action was a material issue in the first action, necessarily determined by the judgment therein; second, a former judgment on the merits. Now, that this work was not done, that it was not worth the amount charged, that it was not within the sewer district in which defendant’s property lies, that the pro rata *194was not correct — none of these things were necessarily •decided by the former judgment. Not only were they not necessarily decided, but we know, in fact, that they were not decided ; and it is conceded in the present case that the work was done. An inspection of the record in the former case and the agreed statement in this case, shows that the •old tax bill is incorrect,, and that no recovery could have been had on it, according to law. The former judgment was, manifestly, not on the merits.
If the position that, after having once issued an erroneous tax bill for sewer work, the city engineer is functus officio as to that be correct, then, clearly, the plaintiff is not entitled to recover in this action, for the facts that he had done the work according to contract with the city and to ordinance, and that it is well done, and worth the amount charged, neither entitle him to a judgment against defendant nor to a special judgment against the property benefited. But if, as we think, the city engineer, having by mistake made an erroneous computation and assessment of the whole cost of the sewer by including some work not in a particular sewer district, may correct this error, and issue, as in this case, amended bills, a judgment for defendant on the first issued and erroneous bill does not conclude the party who did the work, unless it shall appear that the judgment was on the merits, and that the question of the value of the work, or some other question material to a recovery on the amended bill, was then tried and determined.
As to the right of the engineer to amend his assessment, it may be further said that, if the engineer follows the law and makes a correct assessment, there can be no need of more than one; but if he disregards the law, the .first so-•called assessment may be regarded as a nullity. Yirtually, "the correct assessment is the only one made, inasmuch as it Is the only legal one.
The law itself makes the special' tax bill the cause of .action, provides that the suit shall be brought on the special *195tax bill, and that “ each bill shall be a separate and distinct demand.” Acts of 1870, p. 193, sec 1.
It is objected that the executrix is not a proper party, ;and that there can be no personal judgment against her. Under the law, as interpreted by the Supreme Court, there can be no personal judgment against any one in this action ; the proceeding is to charge the real estate described in the bill. The executor, being entitled to the possession and control of realty until otherwise ordered by. the Probate •Court, is, however, not an improper party to a suit affecting -it. Acts of 1871, p. 193, sec. 2. The motion for a rehearing is denied.
All the judges concur.