The opinion of the court was delivered by
Milton, J. :I. The penalty portion of the judgment was erroneous. More than a year had elapsed after the payment of the warrant in question, and after demand for its repayment, prior to the commencement of this action. Recovery of the penalty was barred by subdivision 4 of section 18 of the civil code.
*720II. As to the plea of res adjudicata. It is settled law that where a demurrer to the merits of a petition is sustained and a judgment for costs is thereupon entered in favor of the party demurring, such judgment, unless reversed, is as final and conclusive between the parties as if founded upon the verdict of a jury. It is not necessary to cite authorities in support of this proposition. The difficult question for consideration is this : Where the demurrer contains several grounds, one of which goes to the merits of the case as presented in the pleading demurred to and the others do not, is a judgment for costs upon the sustaining of the demurrer conclusive between the parties in a subsequent action based on the same facts?
In Griffin v. Seymour, 15 Iowa, 30, it was held that where one of the grounds of the demurrer was a misjoinder of parties, and the other involved the merits or the right of the plaintiff to recover-on his cause of action, it would be presumed that the court sustained it upon the former ground alone, where the record did not state the ground of the ruling. It should be observed, however, that upon an appeal from that ruling the supreme court had held there was a misjoinder of parties in the original action. (Griffin v. The County of Grundy et al., 10 Iowa, 226.)
The supreme court of New York, in People v. Stephens, 51 How. Prac. Rep. 235, gave' the question now before us very careful consideration. The grounds of the demurrer in the case already adjudicated had been the same as in this case, and the court had given “judgment for the defendant upon said demurrer,”, with leave to the plaintiffs to amend. After a long delay an appeal was taken. The supreme court held that the judgment upon the demurrer was *721a bar to the last action, remarking that “ the order and judgment, presumptively at least, show that the merits of the case were in fact determined.” The court regarded the case of Griffin v. Seymour, supra, as depending upon the fact that, since the supreme court had held there was a misjoinder of parties, the ruling was presumptively upon that ground. The opinion cites a large number of cases, one of them being House v. Mullen, 22 Wall. 42, in which a demurrer to a bill in chancery had set up several grounds, some reaching the merits of the action and others not. The decree sustained the demurrer and dismissed the complaint. The supreme court declared that as the decree stood it would bar another suit.
Our supreme court, in the case of Smith v. Auld, 31 Kan. 262, considered questions quite similar to the one here presented. From a review of several authorities, the court concluded that the mere fact that a dismissal is not expressed to be without prejudice does not necessarily establish that it was a decision on the merits and a bar to a subsequent action ; that where a former adjudication is pleaded in bar the whole record of the prior action is to be searched in order to' determine what was in fact adjudicated. The court announced the following doctrine :
“In conclusion, it maybe laid down as a general proposition, that wherever from the face of the record it affirmatively appears that an order of dismissal was based on matters other than the merits, such order of "dismissal will not be a bar to a future action.”
It has been quite uniformly held that, while evidence may be introduced for the purpose of sustaining or overthrowing the plea, of res adjudicata, it is not ad- ■ missible to contradict the record. Excepting the Iowa case, in which the ground of the demurrer upon *722which the ruling was based did not go to the merits of the action, the authorities seem to be in substantial accord in holding that such a judgment as is here presented is a complete bar to another action upon the same subject-matter. The record shows the grounds of the demurrer; that the court found them to be true; that leave was given to file an amended petition ; that the same was not filed as to Merrill; and that at the term of court succeeding that at which the demurrer was sustained the case was dismissed as to Merrill at the cost of the plaintiff, for the reason that the demurrer had been sustained and no amended petition filed against the defendant, Merrill. It further appears that an amended petition was filed against the bank alone. We must hold, therefore, that the plea of the defendant was well taken, and that the present action was barred by the former judgment.
The judgment of the district court is reversed, and the case remanded, with instructions to enter judgment in favor of the plaintiff in error for costs.