Barr v. Poor

We are of opinion that the conclusion of the court below in overruling the demurrer to the reply was right, for the reasons set out in the opinion, per Swing, J., in Barr v. Poor, 15 Dec. 217.

We regret that the established law seems to require this conclusion, as it is hardly consistent with right that a plaintiff should be permitted to affirmatively allege a fact which on demurrer becomes determinative of that particular action, and then be permitted in a subsequent action, to allege the exact contrary. The only thing which saves the former judgment from being res adjudicata as to the second action is the circumstance that the fact pertains to the remedy, procedure and measure of evidence and not to the essential merits of the controversy. This being so, brings us to an examination of the correctness of the action of the court below in arresting the case from the jury, and giving judgment for the defendant.

An examination of the record shows that there is a scintilla of evidence upon all the essential points, and this rule demands that the case should have been submitted to the jury. This is one of the eases where the court would like to ide the force and effect of the scintilla *258rule,, as tbe record hardly presents a meritorious action, or a case where-a verdict, had there been one for the .plaintiff, could be permitted to-stand, and yet the law requires a submission to t¿e jury.

Judgment will be reversed, and cause remanded for a new trial.