Coates v. Santa Fe, P. & P. Ry. Co.

• Decision Date: 02 October 1913
• Docket Number: Civil 1308
• Citation: 15 Ariz. 25,135 P. 717
• Parties: JOSEPH R. COATES, Appellant, v. SANTA FE, PRESCOTT & PHOENIX RAILWAY COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

135 P. 717

15 Ariz. 25

JOSEPH R. COATES, Appellant, v. SANTA FE, PRESCOTT & PHOENIX RAILWAY COMPANY, a Corporation, Appellee

Civil No. 1308

Supreme Court of Arizona

October 2, 1913

APPEAL from a judgment of the Superior Court of the County of Yavapai. Carl G. Krook, Judge. Affirmed.

The facts are stated in the opinion.

Mr. A L. Hammond, for Appellant.

Mr Paul Burks and Mr. U. T. Clotfelter, for Appellee.

OPINION

ROSS, J.

Appellant 's action is for damages for personal injuries alleged to have been sustained by him on July 31, 1910, while in the employment of appellee as a brakeman. This action is the second action instituted in the same court, between the same parties, upon the same cause of action. The first suit was begun on October 14, 1910. To the first suit the defendant (appellee) pleaded in bar that plaintiff (appellant) had, for a good and valuable consideration, acknowledged full satisfaction of any cause of action that he had against the appellant and, as evidence of release and satisfaction attached to the plea two receipts or written agreements dated, respectively, August 24, 1910, and August 25, 1910. Thereafter, on March 13, 1911, the court made and entered the following order: "This cause coming on to be heard upon defendant's plea in bar, R. P. Talbot appearing for plaintiff, Paul Burks appearing for defendant, and plaintiff confessing the plea in bar and consenting thereto, it was ordered that this cause be and the same is hereby dismissed with prejudice; plaintiff to pay all costs."

The appellant, disregarding the first action and the proceedings and judgment therein, on July 31, 1911, commenced the second or present action based on the same facts as was the first action. To this last action the appellee (defendant) pleaded the judgment in the first action as a bar. On November 18, 1912, appellant in a replication, among other things, states: "That on the -- day of -- , 1910 he caused suit to be instituted against the said defendant in the district court of said county, based upon the same subject matter as contained in the complaint filed herein. That on, to wit, the ninth day of March, 1911, said cause was dismissed. That an order, as alleged in said defendant's answer, was entered in the books of the clerk of said court. That not until, to wit, July 25, 1911, did plaintiff possess any knowledge or was in any manner advised that said cause had been dismissed. That he was continuously advised by his attorney in said cause that the same was good, meritorious, and worthy of adjudication. That he had been to and was continuously put to large expense in preparing for the trial of said cause and was at said last-mentioned date, and for a long time prior thereto, expecting to be notified by his said attorney that said cause was set for trial at a date certain. Plaintiff further alleges that the act of his said attorney in dismissing his said cause as aforesaid consisted of fraud, deceit, and collusion and corrupt practice against the just rights of plaintiff and in absolute disregard of his instructions to his said attorney, and his said attorney had no authority so to do."

Appellee filed objections to the reply in this: That it failed to state facts sufficient to constitute a defense to the plea in bar and was barred by the statute of limitations. Upon the pleadings the court sustained appellee's plea in bar and dismissed the action. The appeal is from the order of dismissal.

It is the contention of appellant that the order of dismissal in the first action is in the nature of the common-law judgment of retraxit, but that it lacks one of the elements of a judgment of retraxit, to wit, the consent or knowledge of the appellant. "'A retraxit is where the party, plaintiff or defendant, comes into court in proper person where his cause is depending and says that he will not proceed any further in his cause. Now, this is a bar to the action forever.' 2 Practical Reg. C.P. 582." Sheffer v. Perkins, 83 Vt. 185, 25 L.R.A., N.S., 1313, 1315, 75 A. 6.

The law is well settled, and all the cases agree that an attorney has no authority to enter a retraxit. It is also plain that the attorney did not attempt, on his own account, to renounce or abandon appellant's cause of action. If the order of dismissal in...