CONCURRING OPINION
By GRIFFITH. J.In the case before us for review, the plaintiff’s whole claim is based upon a suretyship position. She filed the present suit in Mahoning County to compel the defendants, Louis Rubich and Kathryn Rubich, to discharge the debt for which she was bound.
The sole question is whether the Common Pleas Court was justified in holding that the present action is barred by the judgment in the former action in Columbiana County under the doctrine of res judicata.
It seems necessary to relate somewhat in detail just what transpired in Columbiana County giving rise to this proceeding in equity in Mahoning . County. In the former case in Columbiana County, the journal reads:—
“This day this cause came on to be heard on the motion of the defendant, Janet Williamson, made under §2329.54 R. C., asking the court to issue an order to the Clerk directing the Clerk that in recording the judgment he certify that Janet Williamson was surety and Robert Williamson, Louis Rubich and Kathryn Rubich are principal debtors on the judgment taken in this action, and the testimony and arguments of counsel. Whereupon, the Court finds that judgment was taken on the cognovit note which is the subject of this action, on the 19th day of May, 1954; that defendant, Janet Williamson, has admitted that she first learned of the judgment in August of 1954; that defendant, Janet Williamson, on the 21st day of April, 1955, filed a petition in this court to vacate and set aside the judgment of May 19, 1954 claiming that her signature on said note was a forgery; that this cause came on to be heard upon the issue of the genuineness of her said signature and was tried to a jury, which jury returned a verdict finding the signature to be genuine on the 21st day of December, 1955; that on January 6, 1955, this court filed a decree lifting the suspension of the previous judgment and dissolved the injunction against execution on said judgment; and that following this action of the court the defendant, Janet Williamson, filed a motion for new trial on January 16, 1956, and following the overruling of said motion, to wit, on the 25th day of February, *4121956, defendant, Janet Williamson, for the first time raised the issue of suretyship by filing the motion now before the 'court.
“The court further finds that the defendant, Janet Williamson, has had a year and a half within which to raise the issue of suretyship, and at no time within this period was such issue brought before the court; that defendant could have elected to contend that she was a surety in April of 1955, but did not, but rather elected to contend that her signature was not genuine; that an examination of the face of the note reveals that Robert Williamson and Louis Rubich signed as partners, and that Kathryn Rubich and Janet Williamson did not sign as partners, placing Janet Williamson in no better position from the evidence on the face of the note than Kathryn Rubich; and that in her relationship to Louis Rubich and Kathryn Rubich, Janet Williamson is not in position of surety on the note in question.
“It is therefore ordered, adjudged and decreed that the motion herein filed by defendant, Janet Williamson, on February 25, 1956, be and the same is hereby denied with exceptions to the defendant, Janet Williamson.”
We are not concerned with the correctness of the former case in Columbiana County for the reason that no appeal was ever taken therefrom, and that judgment stands undisturbed.
What is the effect of the determination of the Columbiana County Court “that in her relationship to Louis Rubich and Kathryn Rubich, Janet Williamson is not in position of surety on the note in question”?
In the case before us, the Trial Court held that Janet Williamson was conclusively bound by that determination and cannot again litigate the same issue in this case. The answer to the question is clearly indicated by an examination of the authorities.
At Page 305 of 142 Oh St, in the case of Norwood v. McDonald, we find that the court, on December 8, 1943, said:—
“A comprehensive definition of res judicata is as follows: ‘The doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.’ 30 American Jurisprudence, 908, Section 161. See also, Hinton, Admr., v. McNeil, 5 Ohio 509, 511, 24 Am. Dec., 315; Stein v. Steamboat Prairie Rose, 17 Oh St 471, 93 Am. Dec., 631; James v. Allen County, 44 Oh St 226, 6 N. E., 246, 58 Am. Rep. 821; State v. Cincinnati Tin & Japan Co., 66 Oh St 182, 64 N. E., 68.
“ ‘If, however, the two suits do not involve the same claim, demand, and cause of action, such effect will not be ordinarily given to the prior judgment.’ * * * To constitute a bar there must be identity not only of subject matter but also of the cause of action. In other words, a judgment in a former action does not bar a subsequent action where the cause of action prosecuted is not the same, even though each action relates to the same subject matter. * *
Can it be said that the Columbiana County Court in passing on the motion of plaintiff to be certified a surety under the statute (§2329.54 R. C.), and its overruling of the same, is an existing final judgment *413rendered upon the merits and, therefore, conclusive of the rights of the parties in the case before us?
In the first place, the two suits do not involve the same claim, demand and cause of action. The cause of action in the former case is an action at law on a promissory note signed by all parties involved in this dispute. The cause of action in the instant case, is a question in chancery on the subject of whether the plaintiff stands in relation to the other defendants as surety or as a principal debtor with the other two.
“Where a judgment or decree is relied on by way of evidence, as conclusive per se, between the parties in a subsequent suit, it must appear by the record of the former suit that the particular controversy sought to be precluded was therein necessarily tried and determined.” The Lessee of John Lore and others v. John Truman, 10 Oh St 45, syllabus 1.
This determination in Columbiana County was incidentally cognizable by the court there, and it was the duty of the court to pass upon the motion therein filed but, in so doing, the court did not render a judgment which is conclusive per se, between the parties, nor was it necessarily tried and determined in the former trial. It was incidental thereto.
The New Waterford Bank did not find it necessary to have this matter litigated and determined in its action in Columbiana County.
“In an action on a written instrument against two or more persons jointly and severally bound, the finding by the court, under section 449 of the code (§5419 R. S.), that one or more of the makers signed the same as surety or bail for his or their co-defendant, and the certificate in the judgment showing which is principal and which are sureties, do not conclude the parties as to the facts so found and certified, in an action subsequently instituted for contribution.
“The effect of such finding and certificate is not changed by the fact that the defendants at the trial appeared, and filed answers in which each alleged that the others were principal debtors.” Gatch v. Simkins, 35 Oh St 89, syllabi 1 and 2.
In the Columbiana County case, the court took the position that the plaintiff should have elected whether she would contend that her signature was a forgery, or whether she would contend that she was merely a surety on the instrument.
We think the fact that she challenged the validity of her signature in no wise bars her from later claiming that she is not a principal, but surety only. 15 O. Jur. 252, Section 30.
In the light of the authorities quoted, and many others examined, as applied to the facts in this case, our conclusion on the proposition stated must be contrary to that of the Court of Common Pleas. By the plaintiff having filed her motion in Columbiana County Court asking to be certified a surety, no one has been injured by that former proceeding except the plaintiff herself, and the defendants are exactly in the same position that they were before the motion was overruled. Therefore, the plaintiff has created against herself no estoppel. No estoppel by judgpignt has arisen as between the co-defendants in the former case.
*414The court was in error in entering judgment for the defendant and dismissing the plaintiff’s petition.. The plaintiff is not conclusively bound nor barred by the determination in the former case in Columbiana County, and the judgment is reversed and cause remanded to the Common Pleas Court for further proceedings of that court to determine the issues raised.
Judgment reversed.
NICHOLS, PJ, concurs. PHILLIPS, J, concurs in judgment.