Whether a judgment or other contract of record is merged in a subsequent judgment or other contract of record upon the same cause of action, seems to depend, in most jurisdictions, on the question whether the cause of action which is set up in the second action is the original cause of action on which the first judgment was based, or is the judgment which was rendered in the first action. If the cause of action which is set up in the second action is the judgment which was rendered in the original action, the judgment rendered in the second action does not operate as a merger of the judgment rendered in the original action.1 It has been held, however, that a judgment rendered in an action based on a prior judgment merges such judgment for most purposes2 even if the judgment in the first action was rendered by an inferior court.3

If the cause of action which is set up in the second action is the original cause of action, and not the judgment rendered in the first action, the judgment rendered in the second action is held to merge the judgment rendered in the first action;4 and if the judgment in the second action is smaller in amount than the judgment rendered in the first action, the judgment creditor's rights are limited by the judgment rendered in the second action, and he can not thereafter enforce the judgment rendered in the first action.5

2 See Sec. 1137.

1 In re Williams, 208 N. Y. 32, 46 L. R. A. (N.S.) 719, 101 N. E. 853; Springs v Pharr, 131 N. Car. 191, 92 Am. St. Rep. 775, 42 S. E. 590.

See also, Jackson v. Shaffer, 11 Johns. (N. Y.) 513; Batten v. Lowther, 74 W. Va. 167, 81 S. E. 821.

2 Gould v. Hayden, 63 Ind. 443; Bertram v. Waterman, 18 Ia. 529. A judgment refusing to revive a prior judgment is a finality as to the effect thereof. Perkins v. Peterson, - Colo. - , 185 Pac. 660.

3 Andrews v. Smith, 9 Wend. (N. Y.) 53 (each judgment rendered in justice's court).

4 Price v. First National Bank, 62 Kan. 735, 84 Am. St. Rep. 419, 64 Pac. 637; Cummins v. Mullins, 183 Ky. 666, 210 S. W. 170. (If inconsistent judgments arc rendered on same contract and between same parties, the second controls.) Johnson v. Hesser, 61 Neb. 631, 85 X. W. 894; Barth v. Loeffel-holtz, 108 Wis. 562, 84 N. W. 846.

The first judgment will not sustain a plea of res adjudicata. Johnson v. Header, 61 Neb. 631, 85 N. W. 894.

5 Price v. Bank, 62 Kan. 735, 84 Am. St. Rep. 419, 64 Pac. 637; Barth v. Loef-felholtz, 108 Wis. 562, 84 N. W. 846.

If a judgment has been rendered upon a cause of action in one state, and an action is brought thereafter-in another state upon the judgment rendered in the first state, and a judgment is recovered in such action in the second state, it is generally held that such second judgment does not operate as a merger of the first judgment.6 The judgment creditor may bring an action thereafter upon the first judgment in the state in which it was rendered,7 or in a third state.8 The rendition of the judgment in the second state does not affect the right of an attorney to a lien upon such judgment as rendered in the first state.9