It may be said that it is immaterial what was the legal cause of the failure of the action, otherwise than on its merits, provided plaintiff commenced his action in good faith. The failure of an action due to an irregular, inefficient, and defective service, void or voidable (Ketterman v. Dry Fork R. Co., 48 W. Va. 606, 37 S.E. 683): quashing of service of summons (Clause v. Columbia Savings Loan Ass'n, 16 Wyo. 450, 95 P. 54); want of jurisdiction (Stevens v. Dill, 142 Okla. 138, 285 P. 845); dismissal without, prejudice for failure to pay costs (Myers v. First Presbyterian Church of Perry, 11 Okla. 544, 69 P. 874), is such a failure otherwise than on the merits within the meaning of section 190, supra, and is sufficient to confer the right to bring a new action within the time limit. 6. Action — Joinder of Causes of Action Arising Out of Same "Transaction."

Probate courts are courts of original general jurisdiction as to probate matters. Stevens v. Dill, 142 Okla. 138, 285 P. 845 (1930); Dill v. Stevens, 141 Okla. 24, 284 P. 60 (1930). Therefore, the District Court of Custer County had the jurisdiction to admit the will to probate.

1961).Stevens v. Dill, 142 Okla. 138, 285 P. 845-46 (1930). See, Rifner v. Lindholm, 132 Kan. 434, 295 P. 670, 671-72 (1931), construing the Kansas savings provision and holding that where an original action is determined to be outside a court's jurisdiction, there is a failure otherwise than upon the merits.

It does not generally operate as an adjudication of the "merits" and will not bar relitigation of the same cause or of any question material to its merits. Gottsch v. Ireland, Okla., 358 P.2d 1097, 1100; Lowden v. Hooper, 188 Okla. 595, 112 P.2d 172, 173; Edmison v. Crutsinger, 165 Okla. 252, 25 P.2d 1103; Stevens v. Dill, 142 Okla. 138, 285 P. 845; 50 C.J.S. Judgments § 638, p. 72; 30A Am.Jur., Judgments, § 353, p. 394; annotation in 49 A.L.R.2d 1036, 1061; cf. Powell v. Chastain, Okla., 359 P.2d 336, 340. The word "merits", as employed in the rule that a final judgment on the merits concludes the parties to the litigation and their privies and bars a new action on the same cause, means "the real or substantial grounds of action or defense as distinguished from matters of practice, procedure or form."

Defendants contend that the district court is without authority or jurisdiction to modify, alter, or vacate the orders, judgments and decrees of the county court except on appeal, and that where the sale through the county court was of an undivided 1/7th interest in said land, said sale proceedings could not in this action be changed or corrected to conform to the intention of the parties. Plaintiffs contend that since, under Stevens v. Dill, 142 Okla. 138, 285 P. 845, they could not, after the delivery of the guardian's deed, take any proceeding in the county court to correct the sale, their only remedy is in a court of equity, and that in Holmes v. Coe, 113 Okla. 12, 237 P. 441, and again in Littlehead v. Mount, 99 Okla. 225, 227 P. 98, this court has recognized the jurisdiction of the district court to determine the intent of the parties to a probate sale. They also assert that the district court has jurisdiction of a suit to reform a guardian's deed to express the true intent of the parties, citing Swaney v. Leeper, 161 Okla. 48, 17 P.2d 510.

In fact, the record clearly discloses that the defendant at all times since the fire was in complete possession of all the facts relating to the destruction and damage of the property. We conclude, therefore, that the amendment of October 24, 1940, was an amendment amplifying and correcting the same claim of the plaintiff and the filing of the subsequent action on December 9, 1940, after the voluntary dismissal on October 24, 1940, was within time and this conclusion finds support in Parker v. Board of County Commissioners of Noble County, 176 Okla. 130, 54 P.2d 1034; De Roberts v. Cross, 23 Okla. 888, 101 P. 1114; Claussen v. Amberg, 172 Okla. 197, 44 P.2d 92; Smith v. Westgate Oil Co., 175 Okla. 573, 53 P.2d 1090; Meshek v. Cordes, 164 Okla. 40, 22 P.2d 921; Stevens v. Dill, 142 Okla. 138, 285 P. 845; Haught v. Continental Oil Co., 192 Okla. 345, 136 P.2d 691; U.S. Fire Ins. Co. v. Whitchurch, supra; and Importers and Exporters Ins. Co. v. Farris, 181 Okla. 339, 73 P.2d 831. Defendant has cited and relies upon several cases, among them Whalen v. Gordon, 75 F. 305; Brickley v. Finlay (Tex. Civ. App.), 143 S.W.2d 433; Kansas Gas Electric Co. v. Evans, 100 F.2d 549, and Springer v. Roberts, 151 Kan. 971, 101 P.2d 908.

The rule of liberal construction requires that this provision should be given a construction "so as to cover all cases which may come within its terms by intendment." Claussen v. Amberg, 172 Okla. 197, 44 P.2d 92, 95; Stevens v. Dill, 142 Okla. 138, 285 P. 845. Plaintiffs alleged that "they jointly acquired the title to the property . . . and that they were the owners and in actual possession on the 25th day of April, 1931."

That it saves the claim from the operation of the statute is the controlling feature in the instant case, for, if the statute is tolled, a new action commenced within a year after the failure of the original one, is commenced in time under section 106, supra, if it seeks the same relief, although such failure may have occurred after the limitation had run. The foregoing conclusion is further strengthened by the decision in Stevens v. Dill, 142 Okla. 138, 285 P. 845, wherein the court held that a proceeding in county court to vacate a guardian's sale tolled the statute of limitations relative to the relief sought, and an action to avoid said sale commenced in district court after the statute had run but within one year subsequent to the dismissal by this court of an appeal from the proceedings in county court for want of jurisdiction, was commenced in time by reason of the provisions of section 106, supra. See, also, Meshek v. Cordes, 164 Okla. 40, 22 P.2d 921; Edmison v. Crutsinger, 165 Okla. 252, 25 P.2d 1103.

It has frequently been held that the purpose of section 190, C. O. S. 1921 (sec. 106, O. S. 1931), is to save to plaintiff the right to commence a new action where he has failed otherwise than upon the merits. Stevens v. Dill, 142 Okla. 138, 285 P. 845, is a case where the plaintiff had undertaken to prosecute an action in a court which had no jurisdiction. He failed both in the trial court and upon appeal. Thereafter he commenced a new action in the proper court. In an appeal from that court it was held:

It must be conceded that where an action is commenced in a state court which does not have jurisdiction, and the plaintiff there fails otherwise than upon the merits, and the action there be dismissed after it might have been brought in the proper state court, the plaintiff may have the benefit of said section and may commence a new action in the proper state court within one year after such dismissal. Stevens v. Dill, 142 Okla. 138, 285 P. 845, and cases therein cited. The general rule is that, "if an action fails for want of jurisdiction of the court in which it is brought, plaintiff may commence a new action within a year thereafter."