First Nat. Bank of Albuquerque v. Lewinson

• Decision Date: 03 March 1904
• Citation: 76 P. 288,12 N.M. 147,1904 -NMSC- 009
• Parties: FIRST NAT. BANK OF ALBUQUERQUE v. LEWINSON.
• Court: New Mexico Supreme Court

76 P. 288

12 N.M. 147, 1904 -NMSC- 009

FIRST NAT. BANK OF ALBUQUERQUE v. LEWINSON.

Supreme Court of New Mexico

March 3, 1904

Syllabus by the Court.

1.A judgment upon a judgment upon a note of a firm against the partner not served nor appearing in the first action is not obtained upon the same cause of action as the note, and is no bar to a subsequent action on the note, under section 2943,Comp. Laws 1897.

2.A demurrer does not admit the truth of an allegation of a legal conclusion.

Appeal from District Court, Bernalillo County; before Justice B. S Baker.

Action by the First National Bank against Sussman Lewinson.Judgment for defendant, and plaintiff appeals.Reversed.

Plaintiff brought action on a certain promissory note against the firm of Lesser & Lewinson as such, and recovered judgment.There was no service on defendant, one of the partners, nor did he appear.Afterwards plaintiff brought action on the former judgment against defendant and recovered judgment.Defendant appealed to this court70 P. 567.During the pendency of that appeal in this court, and before the same was decided, this action was commenced in the district court upon the original cause of action, viz., the note heretofore mentioned, as is provided may be done by section 2943,Comp. Laws 1897.Defendant answered, setting up the recovery of the first judgment, the recovery of the second judgment upon the first the appeal and pendency of the cause in this court, and alleging that the cause of action pleaded in this case was the same cause of action upon which the first and second judgments were obtained.Plaintiff demurred to the answer on the ground that the same stated no defense, which demurrer was overruled, and, plaintiff standing on its demurrer, on motion of defendant judgment was rendered in his favor, and plaintiff appeals.

A. B McMillen, for appellant.

W. B Childers, for appellee.

PARKER, J.(after stating the facts).

1.In the first action upon the note against the firm as such the parties were not the same as in the present action, and that judgment cannot be held to be a bar to this action for that reason.The second action upon the first judgment was between the same parties as the present one and if upon the same cause of action, is a bar to the present one.Is, then, the judgment recovered in the first case, and used as a cause of action in the second case, viz., the note?The exact question has been presented, so far as we are advised, in but two cases, in each of which it has been held that a judgment upon a note is not the same cause of action as the note.Steers v. Shaw,53 N. J. Law, 358, 21 A. 940;Rogers v. Odell,39 N.H. 417.In each of these cases the plea was in abatement on the ground of another suit pending for the same cause, but the same principles apply as do to a plea in bar where the former suit has gone to judgment.The Haytian Republic, 154 U.S. 118, 128, 14 S.Ct 992, 38 L.Ed. 930.In the New Hampshirecase, supra, action was commenced both in New Hampshire and Massachusetts upon the same note, and judgment was first obtained in Massachusetts.Thereupon, and while the action on the note was still pending in New Hampshire, plaintiff brought action there on the Massachusetts judgment.Defendant pleaded another action pending, viz., the action on the note.The court say: "What is meant by the 'same cause of action' is where the same evidence will support both actions, although the actions may happen to be grounded on different writs.This is the test to know whether a final determination in a former action is a bar or not to a subsequent action, and it runs through all the cases in the books, both for real and personal actions.It was resolved in Ferrer's Case, 6 Rep. 7, that where one is barred in any action, real or personal, by a judgment upon demurrer, confession, verdict, etc., he is barred as to that, or the like action, of the like nature, for the same thing, forever.By this test the two actions here in question cannot be regarded as for the same cause, as the evidence by which they must be supported is essentially different.Nothing but an authenticated copy of the judgment is admissible in this action.In the earlier action that evidence would be clearly incompetent and inadmissible."In the New Jersey case the same reasoning is implied, and the same result reached.That this test, viz., would the same evidence authorize a judgment in both cases? is general, if not universally adopted, seeStowell v. Chamberlain,60 N.Y. 272;Steam Packet Co. v. Bradley, 5 Cranch (C. C.) 393, Fed. Cas. No. 13,333;Stone v. U. S.,64 F. 667, 12 C. C. A. 451, affirmed167 U.S. 178, 17 S.Ct. 778, 42 L.Ed. 127; 24 A. & E. Ency. (2d Ed.) 781, and note 2.In Stowell v. Chamberlain, supra, it is said: "It is not sufficient that the...