WORRILL, J.
(After stating the foregoing facts.) The only question presented for determination is whether or not the sustaining of the demurrer to the cross-action in the previous case was a final judgment on the merits of the case barring the present suit. "A former recovery on grounds purely technical, and where the merits were not and could not have been in question, shall not be a bar to a subsequent action brought so as to avoid the objection fatal to the first...
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