"A judgment by default only admits for the purpose of the action the legality of the demand or claim in suit ; it does not make the allegations of the declaration or cot plaint evidence in an action upon a different claim." Cromwell v. County of Sac, 94 U. S. 356, 24 L. Ed. 195.
The following will not operate as res judi cata: A judgment on a plea in abatement in an action of attachment for rent is not res judicata on the trial on the merits; Caruthers v. Williams, 53 Mo. App. 181. A judgment ordering that the cause be filed away for want of prosecution is not final or a bar to a subsequent action ; Nickell v. Fallen (Ky.) 23 S. W. 366. A judgment abat ing an action entered upon a verdict finding that plaintiff's powers as administrator had ceased pending the action, is not a bar to the subsequent revival of the action on plain tiff's reinstatement as administrator ; Hill v. Bryant, 61 Ark. 203, 32 S. W. 506. A decree against the plaintiff without preju dice; Robinson Car & Foundry Co., 142 Fed. 170; Cassatt v. Coal Co., 150 Fed. 33, 81 C. C. A. 80, 10 L. R. A. (N. S.) 99; where the former judgment was on matter of form or on a plea to the jurisdiction; Bissell v. Spring Valley Township, 124 U. S. 225, 8 Sup. Ct. 495, 31 L. Ed. 411, where a bill was dismissed, but the plaintiff could sue at law ; Pendleton v. Dalton, 92 N. C. -185. So a judgment of recovery by a physician when set up in a subsequent suit for mal-practice ; Jordahl v. Berry, 72 Minn. 119, 75 N. W. 10, 45 L. R. A. 541, 71 Am. St. Rep. 469.
The decision of a motion or summary application is not to be regarded in the light of res judicata, or as so far conclusive upon the parties as to prevent their drawing the same matter in question again in the more regular form of an action ; Denny v. Bennett, 128 U. S. 489, 9 Sup. Ct. 134, 32 L. Ed. 491.
A judgment in a civil action is not ad missible in a criminal proceeding, for the reason that the parties "are necessarily dif ferent, and the objects and results of the two proceedings are equally diverse;" State v. Bradnack, 69 Conn. 212, 37 Atl. 492, 43 L. R. A. 620 ; Britton v. State, 77 Ala. 202 ; contra, Darrell v. State, 83 Ind. 357, where, in a prosecution for the unlawful removal of a fence, a judgment in a civil action between the defendant and the prosecuting witness was admitted in evidence. But this case
was criticised in State v. Bradnack, 69 Conn. 212, 37 Atl. 492, 43 L. R. A. 620, as founded upon an error which was not re lieved by the instruction of the court to the jury that the evidence was not conclusive, but merited serious consideration. The Connecti cut court cite a former decision of their own to the effect that, "a judgment is conclusive or is nothing. If not conclusive, there is no rule by which courts can measure and de termine its effect ;" Bethlehem v. Water town, 51 Conn. 494. See 11 L. R. A. (N. S.) 653, n.
A judgment in habeas corpus to obtain possession of a child is conclusive so long as the same conditions exist ; Cormack v. Mar shall, 211 Ill. 519, 71 N. E. 1077, 67 L. R. A. 787, 1 Ann. Cas. 256; and so upon the same state of facts in another jurisdiction; Slack v. Perrine, 9 App. D. C. 128. The doctrine is said to apply to habeas corpus proceed ings to obtain the custody of a child ; Weir v. Marley, 99 Mo. 484, 12 S. W. 798, 6 L. R. A. 672; Willis v. Willis, 165 Ind, 332, 75 N. E. 655, 2 L. R. A. (N. S.) 244, 6 Ann. Cas. 772; but not in another court where the welfare of the child requires it, though no change of circumstances is shown ; In re King, 66 Kan. 695, 72 Pac. 263, 67 L. R. A. 783, 97 Am. St. Rep. 399.
In proceedings for the custody of a child the facts must be identical, and the court cannot say that they are so when the evi dence of the former proceeding is not be fore it ; People v. Dewey, 23 Misc. Rep. 267, 50 N. Y. Supp. 1013.
The doctrine does not apply to habeas corpus judgments for the remanding of a prisoner where a new state of facts exists; Weir v. Marley, 99 Mo. 484, 12 S. W. 798, 6 L. R. A. 672.
But It has been held that a judgment in habeas corpus proceedings is conclusive as to the person charged with unlawfully re straining another of his liberty, until revers ed in some proper proceedings ; State v. Huegin, 110 Wis. 189, 85 N. W. 1046, 62 L. R. A. 700; to the same effect, State v. Whitcher, 117 Wis. 668, 94 N. W. 787, 98 Am. St. Rep. 968; a judgment does not affect a later ap plication ; In re Kopel, 148 Fed. 505.