Hoff v. City of Mesa
| Citation | 344 P.2d 1013,86 Ariz. 259 |
| Decision Date | 14 October 1959 |
| Docket Number | No. 6632,6632 |
| Parties | Ole HOFF, Personal Representative of Paul Hoff, Deceased, Appellant, v. CITY OF MESA, a municipal corporation, George Goodman, Frank E. Bendick, E. J. Brown, Richard Johnson, LeRoy Kellis, Lee J. Mumford and Ralph Norman Pearce, Appellees. |
| Court | Supreme Court of Arizona |
Hash & Bernstein, Phoenix, for appellant.
Shimmel, Hill, Cavanagh & Kleindienst and John E. Savoy, Phoenix, for appellees.
This is an appeal by the personal representative of Paul Hoff, deceased, from an order granting summary judgment in favor of the City of Mesa, a municipal corporation and its duly elected Councilmen, who will be hereinafter designated as defendants.
The facts pertinent to this appeal are virtually undisputed. The City of Mesa, through its Council employed Joe True as a policeman without requiring from him a bond indemnifying any person injured or aggrieved by his wrongful act. That on the 16th day of April, 1956, Joe True, while acting in his official capacity and in the course of his official duties, negligently fired a shot into a car driven by Paul Hoff, resulting in his death. Thereafter the plaintiff, as personal representative of deceased, filed a suit against Joe True, alleging the above facts, and made the City of Mesa and the members of its Council, parties defendants, alleging that the city Councilmen negligently failed to require a bond from True prior to his assumption of duty as a policeman, which omission caused substantial damage to the estate of Paul Hoff, deceased.
Thereafter the trial court entered an order granting a motion to dismiss for failure to state a claim upon which relief could be granted as to the City of Mesa and its Council, leaving Joe True as the only defendant. The action went to trial and the jury returned a verdict in favor of the personal representative of the deceased against Joe True for the sum of $50,000.
In an effort to satisfy this judgment, the personal representative of the deceased, instituted a second suit against the City of Mesa and the same Councilmen as in the original action. The second complaint contained the same allegations as the first with the additional allegation that a judgment had now been obtained against Joe True. The trial court granted defendant's motion for summary judgment and this appeal follows.
Plaintiff contends that the court erred in granting summary judgment for defnedants for the reason that the complaint sets forth a claim against each of the defendants and that there has been no previous adjudication of the merits of the claim set forth in the complaint. It is the contention of the defendants that the order granting summary judgment was proper in that the original dismissal constituted an adjudication on the merits and for that reason plaintiff's second complaint is barred by the doctrine of res judicata.
Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive as to every point decided therein and also as to every point raised by the record which could have been decided, with respect to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. Lauderdale v. Industrial Commission, 60 Ariz. 443, 139 P.2d 449; O'Neil v. Martin, 66 Ariz. 78, 182 P.2d 939; Taylor v. Betts, 59 Ariz. 172, 124 P.2d 764 and Shattuck v. Shattuck, 67 Ariz. 122, 192 P.2d 229.
Plaintiff contends that the doctrine of res judicata is inapplicable to the facts of this action for the reason that the granting of a motion to...
To continue reading
Request your trial
-
Owens v. LSF9 Master Participation (In re Owens)
...Ariz. 78, 182 P.2d 939; Taylor v. Betts, 59 Ariz. 172, 124 P.2d 764 and Shattuck v. Shattuck, 67 Ariz. 122, 192 P.2d 229.86 Ariz. 259, 261, 344 P.2d 1013, 1014 (1959). The U.S. Supreme Court has held that in determining whether or not a claim is barred by claim preclusion, a court should co......
-
Heywood v. Samaritan Health System
...the facts. This issue, again, was not addressed by the parties and the Court will not decide it but notes that in Hoff v. City of Mesa, 86 Ariz. 259, 344 P.2d 1013 (1959), the Arizona Supreme Court held that "an existing final judgment rendered upon the merits ... is conclusive as to every ......
-
Sullins v. Third and Catalina Const. Partnership, 1
...and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. Hoff v. City of Mesa, 86 Ariz. 259, 344 P.2d 1013 (1959). The doctrine of res judicata will operate to bar a claim in certain instances where a litigant was neither a party or in p......
-
Perdue v. Knudson
...F.2d 353 (5 Cir. 1962); Intertype Corporation v. Clark-Congress Congress Corporation, 240 F.2d 375 (7 Cir. 1957); Hoff v. City of Mesa, 86 Ariz. 259, 344 P.2d 1013 (1959); City of Los Angeles v. Jameson, 165 Cal.App.2d 351, 331 P.2d 1014 (1958); Hizel v. Howard, 144 Colo. 15, 354 P.2d 611 (......