In order that a judgment may operate as a merger, it must be rendered by a court which has jurisdiction of the subject-matter, and of the parties.1 If a judgment is void for want of jurisdiction, it does not operate as a merger of the original cause of action, and the plaintiff in such action may bring another action upon his original cause of action.2 This follows as a necessary consequence of the rule that the judgment in the original action is not conclusive as between the parties, and that it is subject to collateral attack for such lack of jurisdiction.3

Car. 527, 119 Am. St. Rep. 983, 10 L. R. A. (N.S.) 734, 57 S. E. 213; Mann v. Mann, 176 N. Car. 353, 97 S. E. 175; Collard v. Fried, - N. D. - , 170 N. W. 525.

4 Collard v. Fried, - N. D. - , 170 N. W. 525.

5 See Sec. 2562.

6 Case Mfg. Co. v. Moore, 114 N. Car. 527. 119 Am. St. Rep. 983, 10 L. R. A (N.S.) 734, 57 S. E. 213.

7 Case Mfg. Co. v. Moore, 144 N. Car. 527, 119 Am. St. Rep. 983, 10 L. R. A. (N.S.) 734, 57 S. E. 213.

8 Nut House v. Pacific Oil Mills, 102 Wash. 114, 172 Pac. 841.

9 Nut House v. Pacific Oil Mills, 102 Wash. 114, 172 Pac. 841.

1 Oil, etc., Co. v. Koen, 64 O. 8. 422, 60 N. E. 603.

2 Kansas, etc., Ry. Co. v. Moon, 66 Ark. 409, 50 S. W. 996; Oil, etc., Co. v Koen, 64 O. S. 422, 60 N. E. 603.

In order to operate as a merger, the judgment rendered in the first action must have been rendered upon the merits of the case.4 A temporary restraining order does not operate as a merger or bar, since it does not purport to be a final adjudication.5

A consent decree operates as a merger of all rights under the original cause of action, and it is conclusive on both parties.6 A decree in equity operates as a merger of the rights of the parties in the cause of action which was the basis of such decree.7 A decree in foreclosure, finding the amount due on the note secured by the mortgage, merges the note.8 However, a foreclosure of a mortgage in which no attempt is sought to enforce the personal liability of the grantee who has assumed the mortgage debt, as a part of the purchase price of the property conveyed to him, does not merge the contract of such mortgagee.9

A judgment at law operates as a merger of the rights of the parties in the cause of action, upon which such judgment was rendered,10 and it prevents a subsequent suit for equitable relief upon the same cause of action.11

An award of damages by arbitration for breach of a contract not to engage in business, is not a merger of such contract so as to prevent a subsequent action at law for a subsequent breach.12

3 See Sec. 1144 and 1146.

4Slaker v. .McCormick-Saeltzer Co., - Cal. - , 177 Pac. 156; Payne v. Buena Vista Extract Co., - Va. - , 98 S. E. 34; Toney v. Sandy Ridge Coal & Coke Co., - W. Va. - , 99 S. E. 178.

A different rule applies in error proceedings. Barnett v. Western Assurance Co., 132 Ark. 434, 201 S. W. 282.

In order to operate as a merger, the judgment must also purport to be a finality. Santowsky v. McKey, 249 Fed. 51, 161 C. C. A. 111.

5 Santowsky v. McKey, 249 Fed. 51, 161 C. C. A. 111.

6 Wagner v. Ruhl, - Md. - , 106 Atl. 2.

7 West New York Improvement Co. v. West New York, - N. J. - , 104 Atl. 611; Brigel v. Creed, 65 O. S. 40,

60 N. E. 991; Horr v. Herrington, 22 Okla. 590, 20 L. R. A. (N.S.) 47, 98 Pac. 443.

A decree refusing specific performance does not fix the rights of the parties at law. Carter v. Schrader, - Ia. - , 175 N. W. 329.

8 Brigel v. Creed, 65 O. S. 40, 60 N. E. 991.

See also, Horr v. Herrington, 22 Okla. 590, 20 L. R. A. (N.S.) 47, 98 Pac. 443.

9 Washington Life Ins. Co. v. Marshall, 56 Minn. 250, 57 N. W. 658; McRae v. Sullivan, 56 Minn. 266, 57 N. W. 659.

10 Sears, Roebuck & Co. v. Pearce, 253 Fed. 960.

11 Sears, Roebuck & Co. v. Pearce, 253 Fed. 960.

12 Nelson v. Hiatt, 38 Neb. 478, 56 N. W. 1029.