The question arising upon the record is, whether or not the judgment in the case of Burgett and others, the plaintiffs in error, against Parker, the county treasurer, was a bar to the action in the common pleas.

The petition and answer in that action put in issue the jurisdiction of the county commissioners to order the improvement to be made. The want of jurisdiction was alleged in the petition as a fact, and the defendants not asking to have the particulars stated from which a want of jurisdiction followed, merely denied the want of jurisdiction. This issue was determined in favor of the defendants.

The same parties now who were plaintiffs in that action *143again call in question tbe jurisdiction of the commissioners to order the improvement, by alleging specifically the facts that show a want of jurisdiction. That question having once been determined between the parties, can not be re-opened by the plaintiffs, upon a state of fact more specifically stated to make the same cause of action.

The question would be the same if the jurisdiction of the commissioners to order the improvement, had been put in issue in the first case upon a state of fact wholly different from the state of fact alleged in the second action — provided that the facts in the action were sufficient in law to authorize the relief demanded. It is not allowable to allege certain facts as a cause of action and after judgment on the merits, to allege a different state of facts to support a demand for the same relief.

If the facts of a case are inconsistent the plaintiff must elect which he will rely upon, and having done so a judgment thereon is final.

The effort now to set aside the order of the commissioners for want of jurisdiction is a repetition of the question made and determined in the action of 1871.

Judgment affirmed.