In an action against the railroad company to recover damages for the loss of a mule injured while being transported, among other pleas filed was one of res adjudicata in which it is averred that in a former suit between the same parties for the same cause of action, a demurrer to the evidence was joined in by the plaintiff, and the judge “did thereupon give his opinion and decide that the said demurrer was well taken and did sustain the same.” A demurrer to this plea of res adjudicata was overruled and final judgment was thereupon rendered for the defendant. The plaintiff took writ of error. As the plea does not aver a final judgment or other final disposition of the prior suit, the demurrer to the plea should have been sustained. See McKinnon v. Johnson, 57 Fla. 120, 48 South. Rep. 910.
The judgment is reversed.
Taylor, G. J., and Shackleford,' Cockrell and Ellis, JJ., concur.