Dowdy v. Calvi

• Citation: 14 Ariz. 148,125 P. 873
• Decision Date: 06 July 1912
• Docket Number: Civil 1231
• Parties: J. T. DOWDY and E. L. GIBSON, Appellants, v. PETE CALVI, Appellee
• Court: Supreme Court of Arizona

125 P. 873

14 Ariz. 148

J. T. DOWDY and E. L. GIBSON, Appellants, v. PETE CALVI, Appellee

Civil No. 1231

Supreme Court of Arizona

July 6, 1912

APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Edward M. Doe Judge. Affirmed.

The facts are stated in the opinion.

Mr Robert E. Morrison and Mr. E. S. Clark, for Appellants.

Messrs Norris & Mitchell and Mr. Reese M. Ling, for Appellee.

OPINION

CUNNINGHAM, J.

A judgment was rendered for the plaintiff and from which judgment and an order overruling defendants' motion for a new trial defendants appeal.

The plaintiff commenced this action August 1, 1910, by filing his complaint, in form, separately setting forth two causes of action, the first of which was for the sum of $1,024.15, money had and received as upon contract, the possession of which money defendants are charged to have acquired by a tortious entry of plaintiff's place of business, in the absence of plaintiff and seizing and taking the money. The second cause of action is founded upon the alleged tortious destruction of plaintiff's business, for which plaintiff claims damages in the sum of $500. Plaintiff also filed his affidavit in attachment claiming an indebtedness against the defendants in the sum of $1,024.15, money had and received by defendants on the ninth day of July, 1910. On September 6, 1910, the defendants filed their answer. On December 28, 1910, plaintiff filed an affidavit and applied for a writ of garnishment against the Bank of Arizona, alleging the same indebtedness due for money had and received in the same amount. On February 2, 1911, defendants moved to quash the attachment proceedings and dissolve the attachment for defects in the affidavits in not setting forth the statutory requirement justifying the issuance of such attachment and garnishment. On the eighth day of February, 1911, the plaintiff filed his amended complaint. The amendments to the original complaint consist of more specific allegations of indebtedness and the circumstances under which defendants obtained possession of the money claimed, and the second separately stated cause of action in the original complaint is wholly omitted in the amended complaint. No ruling was had on the motion to quash and dissolve the attachment, and on February 8, 1911, the plaintiff filed amended affidavits in attachment and in garnishment containing the necessary and required allegations omitted from the original affidavits.

The appellants assign error upon the ruling of the court permitting the plaintiff to file amended affidavits in attachment and garnishment, and in refusing to dissolve the attachment and garnishment.

The purpose of attachment, including garnishment, is to hold the property of the defendant as security for the satisfaction of any judgment the plaintiff may recover against the defendant in a suit pending on a contract, express or implied, for the direct payment of money, made or payable in Arizona. Rev. Stats. (Civ. Code) Ariz. 1901, par. 332.

The attachment is liable to abate upon motion unless th bond and affidavit contain all essential matters required by the statute. Rev. Stats. Ariz. 1901, par. 339.

However, no writ of attachment shall be quashed, nor the property taken thereunder be restored, nor any garnishee discharged, nor any bond by him given canceled, on account of the insufficiency of the original affidavit, writ of attachment, or attachment bond, if the plaintiff, or some person for him, shall cause a legal and sufficient affidavit or attachment bond to be filed, or the writ to be amended, in such time and manner as the court may direct, and in that event the court shall proceed as if the proceedings had originally been sufficient. Rev. Stats. (Civ. Code) Ariz. 1901, par. 362.

The appellants complain that the amended complaint introduces into the case a new and different cause of action from that originally pleaded; that in the original complaint the alleged cause of action was founded on tort for conversion, whereas in the amended complaint the alleged cause of action is in contract. Appellants do not make their position entirely clear. If appellants intend to complain that in the original complaint the cause of action is founded upon tort, and in form sounds in tort, and on the other hand in the amended complaint the cause of action is founded in tort and in form sounds in contract, we could understand how appellants argue the question of election of remedies so vehemently. The cause of action set forth in the amended complaint is founded upon the identical tort -- the conversion of the money tortiously acquired by defendants. The possession of the money is alleged to have been acquired by the appellants from the same building, at the same time, and in the manner, and in the same sums in both the original and in the amended complaints, and in both the plaintiff is alleged to be the owner of the money converted, and in both the same relief is prayed -- same remedy is pursued. We discover no grounds for election of remedies. If it is the contention of appellants to base their objections on the grounds that, by reason of the plaintiff having joined an action sounding in tort with an action sounding in contract (which was the case in the original complaint), the defendants are at liberty to elect to consider the whole complaint as a single action sounding in tort, because a separate cause of action separately stated therein sounds in tort, and when plaintiff has amended his action and eliminates from his complaint the separate cause of action sounding in tort, is the pursuing of a different remedy in the amended action from the remedy pursued in the original suit, and thus makes an occasion for an election of remedies, and that plaintiff has elected to pursue his remedy in tort before he pursues his remedy in contract, we can understand, but we cannot agree with their position. While the suit was standing upon the original complaint, the defendants may have caused the abatement of one of said causes of action upon a proper motion, but the necessity for such motion no longer existed when the offensive cause of action was eliminated. No merit appears in the appellants' contention. No departure has resulted by the amendment so made. Plaintiff elected to pursue his remedy for the tortious conversion of his money by his action for money had and received as upon a contract, and thereby waived his remedy for damages suffered by the tortious conversion, which he had the right to do, and by which the defendants are considered in law peculiarly favored.

The amended complaint having been filed before trial, no leave of court permitting the filing of such amended complaint under such circumstances was required; but plaintiff was required to serve appellants with a copy thereof (paragraph 1288, Rev. Stats. [Civ. Code] Ariz. 1901), and, as no objection is made upon that ground, we presume such service was duly made.

The authorities cited by appellants on this phase of the case have no application to the facts appearing in this case.

The defendants pleaded in abatement a replevin suit pending and undisposed of in the same court, alleging that the parties are the same, and by said action plaintiff is seeking to recover $665, consisting of currency, gold, and silver, and that plaintiff therein alleges that defendants on the ninth day of July, 1910, wrongfully and unlawfully seized and secured possession of said money, and it is alleged that such money is a part and parcel of the money for which plaintiff sues in this action.

Defendants pleaded the same replevin suit in bar, setting up, substantially, the same facts as set forth in their plea in abatement, to both of which pleas plaintiff demurred, and the court sustained such demurrers. These rulings are assigned as error.

Another suit pending in the same or other court between the same parties involving the same subject of action, pursuing the same or a different remedy for relief, upon application made, cannot stand together. The suit first commenced, in point of time, controls, and, when the remedies are inconsistent, such prior suit is an election of remedy and prevails. A subsequently commenced action between the same parties, for the same cause of action, seeking a different relief, will abate even though the prior action has been dismissed, because the plaintiff elected his remedy and cannot have two remedies for the same wrong. If an action pursuing one remedy has been tried in court, he cannot prosecute another suit for the same cause of action, but for a different relief, because the facts constituting the cause of action have been adjudicated. Moler v. Tuska, 87 N.Y. 166; Thompson v. Howard, 31 Mich. 309; Schoonmaker v. Kelley, 42 Hun (N.Y.), 304; Robb v. Vos, 155 U.S. 138 39 L.Ed. 52, 15 S.Ct. 4; A. Klipstein & Co. v. Grant, 141 F. 728 C.C.A. 511; and numerous others. But we think the above sufficient to illustrate the law on the subject.

Neither the plea in abatement nor the plea in bar allege the date of the commencement of the replevin suit. This action was numbered 5395, and the said pleas refer to the replevin suit as No. 5392. We cannot, nor could the trial court, judicially know that, by reason of the replevin suit having been given a lower number than this action was given, it was therefore the suit first commenced in that court. The trial court had this suit under consideration, and not the replevin suit, and was justified in holding that this suit was properly before it, not subject, for the reasons shown, to abate or to be barred unless the pleadings show that the replevin suit was for the same cause of action, seeking a different relief and first commenced. Both pleas...