This is an action by the plaintiff, Leshe J. O'Brien, against the defendant, M. Lena Hessman, for restitution. The plaintiff alleged that the defendant fraudulently obtained a judgment against Amanda C. O'Brien, the plaintiff's deceased wife, which judgment the plaintiff has paid. The plaintiff seeks to recover what he paid.

In 1949, the defendant recovered a judgment against Amanda C. O'Brien for $2,254.50, the amount of principal ($1,800) and interest ($454.50) due on a promissory note. The note, signed by Amanda C. O'Brien, was dated December 5, 1941, and was payable in two years. The evidence at the trial indicated that it was a renewal note. The jury found that Amanda C. O'Brien owed money to the defendant on December 5, 1941. This court, in affirming the judgment, held that the note was valid because the discharge of a preexisting indebtedness is good consideration for a new note. Hessman v. O'Brien (1951), 258 Wis. 243, 45 N.W.2d 730.

Amanda C. O'Brien died in February, 1952. In April of that year, the plaintiff commenced an action against the defendant, both individually and as executor of his wife's estate, to recover damages for fraud and for the wrongful death of his wife due to the fraud. He alleged in his complaint:

"2. That . . . defendant M. Lena Hessman recovered a judgment against the decedent, Amanda C. O'Brien, . . . for the sum of $2,254.50 damages and $152.49 court costs and disbursements, . . . said judgment having been fully satisfied by payment by Leshe O'Brien, bondsman for Amanda C. O'Brien.

"3. That on information and belief said judgment was secured by means of false and fraudulent representations knowingly placed before said court; that the plaintiffs have at all times objected to the judgment and at this time have new evidence to show that the note on which the judgment was secured was altered and mutilated prior to being introduced into the court as evidence."

The defendant demurred and the trial court entered an order sustaining the demurrer. The plaintiff was given twenty days to plead over. He appealed the order to this court and it was affirmed. We stated that the allegations of fraud were mere conclusions and raised no issue. Accordingly the complaint failed to state a cause of action. It was also noted that in so far as the action was based on wrongful death, it was barred by the statute of limitations. O'Brien v. Hessman (1953), 265 Wis. 63, 60 N.W.2d 719. The plaintiff did not serve an amended complaint, and on December 23, 1953, a judgment was entered dismissing the action on its merits.

The action involved on this appeal was commenced in 1957. The plaintiff, in his amended complaint in this action, alleges on information and belief that:

". . . in her complaint the said M. Lena Hessman falsely and fraudulently swore that said note had been executed December 5, 1941, and was payable two years thereafter, and, thereafter, she further swore, under oath, as a witness at the trial of said action, that said note was executed on December 5, 1941; that the said M. Lena Hessman offered into evidence at said trial an instrument in writing which she swore, under oath, at said trial, was the original of said note; that said instrument appeared to be a promissory note dated December 5, 1941, in the sum of Eighteen Hundred Dollars ($1,800) payable two years thereafter and as to which the said Amanda C. O'Brien was the promisor and the said M. Lena Hessman the promisee; that in truth and in fact, plaintiff alleges on information and belief, said instrument had been executed on December 5, 1921, but had been altered to make it appear to have been executed on December 5, 1941."

The defendant's answer set forth a special plea in bar. She contended that the action of this court in the 1953 appeal, affirming the order of the trial court sustaining her demurrer to the 1952 complaint and the subsequent judgment of the trial court dismissing the 1952 action on its merits, barred this 1957 action by the plaintiff. The trial court decided that the disposition of the 1952 action was res judicata. A judgment was entered dismissing the plaintiff's complaint on its merits. From this judgment the plaintiff appeals.

GORDON, J.

The appellant contends that the disposition of the 1952 action does not preclude the present litigation. The respondent maintains that the judgment dismissing the 1952 complaint on its merits is a bar to the present action.

Generally, a prior adjudication is a bar to a subsequent action involving the same parties and the same cause of action. This is the doctrine of res judicata. See Will of Nunnemacher (1939), 230 Wis. 93, 283 N.W. 326, and Rahr v. Wittmann (1911), 147 Wis. 195, 132 N.W. 1107. See also Restatement, Judgments, p. 191, sec. 48, and Charles, Res Adjudicata and Estoppel by Judgment, 32 Wisconsin Bar Bulletin, 16 (June, 1959).

The issue here is the conclusiveness of the judgment on the merits entered subsequent to the demurrer. The Restatement, Judgments, p. 197, sec. 50, states the general rule:

"Where a valid and final personal judgment in favor of the defendant is rendered on the ground that the complaint is insufficient in law, the judgment is conclusive as to the matters determined, and if the judgment is on the merits the plaintiff cannot thereafter maintain an action, on the original cause of action."

Wisconsin is in accord with this general rule. See Lewko v. Chas. A. Krause Milling Co. (1935), 219 Wis. 6, 261 N.W. 672; Hooper v. Oshkosh (1927), 192 Wis. 523, 213 N.W. 285; Ellis v. Northern Pacific R. Co. (1891), 80 Wis. 459, 50 N.W. 397. See also Anno. 13 A.L.R. 1104, supplemented in 106 A.L.R. 437.

However, the appellant argues that if the demurrer does not go to the merits then the subsequent judgment of dismissal is not res judicata. See Lewko v. Chas. A. Krause Milling Co., supra; Taylor v. Matteson (1893), 86 Wis. 113, 56 N.W. 829; Docter v. Hutch (1890), 76 Wis. 153, 44 N.W. 648, 44 N.W. 826. The appellant points out that the order in the 1952 action sustaining the demurrer to his complaint allowed him time to plead over. Thus, he argues, it is clear that the demurrer in the 1952 action did not go to the merits.

But the appellant did not plead over in the 1952 action. He permitted a judgment on the merits to be entered against him. A judgment on the merits may be entered without a trial. Angers v. Sabatinelli (1942), 239 Wis. 364, 1 N.W.2d 765.

We recognize that under similar facts courts in other jurisdictions have held that the failure to plead over and a subsequent judgment of dismissal do not foreclose the commencement of a new action. But other courts have held that the failure to plead over and a judgment of dismissal constitute a bar to a later action. The cases on each side are listed in Anno. 13 A.L.R. 1104, 1115-1120.

Upon the Facts of the instant case, we hold that the judgment dismissing the 1952 complaint on its merits, entered after the appellant failed to plead over, was res judicata and is a bar to this present action by the appellant.

By the Court. — Judgment affirmed.