Opinion of the court by

The sole question involved in the case is whether the judgment of the district court against Jackson and the finding of the court that “there exists no joint liability on the part of the co-defendants, Ferguson, Lucas and others, with the defendant Jackson, on the cause of action set forth in the pleadings of the plaintiff,” and by which it was, therefore, by the court “ordered and adjudged that the defendants, Ferguson, Lucas and others, recover their costs herein against the plaintiff”’ is a good defense in this action.

The finding of the court was that there was “no joint liability on the bart of the co-defendants,” including Lucas, and that, therefore and on that account, the court *587 ordered that they should recover their costs against the plaintiff.

This was not a judgment based on the merits. It was not a determination that Lucas and the other defendants might not have been, to similar or different extents, liable, if they had been sued separately. It was simply a determination that, upon the facts of that case, they were not “jointly” liable.

If a suit is disposed of upon any ground which does not go to the merits of the action, the judgment rendered will prove no bar to another suit. (Hughes v. U. S. 4 Wall. 232; Jordan v. Siefert, 126 Mass. 25; Gould v. Evansville, etc., R. Co., 91 U. S. 526; Verhein v. Schultz, 57 Mo. 326; Detroit v. Houghton, 42 Mich. 459; Rogers v. Higins, 57 Ill. 244.)

The rule is that when it can be gathered from, the record that the merits of the controversy were not passed upon in the first action, or that the determination proceeded upon some technical objection, not affecting the plaintiff’s ultimate right to sue, the first judgment will constitute no bar to the second suit. (Carmony v. Hoover, 5 Pa. St. 305; Wells v. Moore, 49 Mo. 230; Foster v. The Richard Busteed, 100 Mass. 412.)

The result of the whole matter is that a judgment not passed upon the merits, is not final and conclusive in the sense that a plea of res judicata may be founded on it. (21 Amer. & Eng. Enc. of Law, 266.)

The demurrer to the defendant’s answer should have been sustained.

*588 The cause is remanded, with directions to the district court to reverse this ruling, and to sustain the demurrer in the cause.