Lockett v. Lindsay

• Decision Date: 01 January 1870
• Parties: R. A. Lockett, Appellant, v. L. B. Lindsay Et Al., Respondents.
• Court: Idaho Supreme Court

1 Idaho 324

R. A. Lockett, Appellant, v. L. B. Lindsay Et Al., Respondents.

Supreme Court of Idaho

January 1, 1870

JUDGMENT-ESTOPPEL.-A judgment on demurrer to a bill in chancery, that the bill is bad in substance, or does not state facts sufficient to constitute a cause of action, cannot be pleaded in bar to a good bill for the same cause of action. Such judgment is, in no sense, a judgment on the merits.

APPEAL from the District Court, Second Judicial District, Ada County.

H. E Prickett, for the Appellant. Rosborough & Preston and J. R McBride, for the Respondents.

Opinion by NOGGLE, C. J.;

LEWIS J., concurring specially. KELLY, J., also concurred.

The plaintiff in this action alleges that one B. A. Lucy was the owner and in the possession of lot number one, in block number ten, in Boise City, Ada county, Idaho territory. That on the twenty-first day of April, 1868, the said B. A. Lucy and Maggie A., his wife, for a valuable consideration, sold and conveyed said lot by deed to this plaintiff; that said deed was duly acknowledged and recorded, etc., and that the plaintiff has ever since been the owner and in the possession of said premises. That on the second day of January, 1869, the defendant R. H. Lindsay obtained a judgment in the district court of Ada county aforesaid, against the said B. A. Lucy, for the sum of four hundred and ninety-seven dollars and ninety-eight cents. That said judgment was duly docketed, etc., on said second day of January, 1869, and execution issued thereon, directed and delivered to the sheriff of said Ada county. That the defendant, L. B.

Lindsay was such sheriff. That by virtue of said judgment, and of the execution issued thereon, the said last-named defendant, as sheriff, levied on the said lot of land, the property of the plaintiff, as the real estate and property of said B. A. Lucy, and on the thirtieth day of January, 1869, the said L. B. Lindsay, as sheriff, sold said lot and premises at public vendue, etc., and that the same was bid off by the defendant, R. H. Lindsay, for the sum of five hundred and forty-six dollars, he being the highest bidder. That the defendant, L. B. Lindsay, as such sheriff, gave to the defendant and purchaser, R. H. Lindsay, aforesaid, a certificate of sale, and a duplicate of the same was filed by the said sheriff with the recorder of said Ada county, on the thirteenth day of February, 1869.

The plaintiff further alleges that the defendant, L. B. Lindsay, as such sheriff, threatens to execute and deliver to said defendant, R. H. Lindsay, or to his assigns, a deed and conveyance of said premises at and upon the expiration of six months after the date of such sale. Whereupon the plaintiff demands judgment that said sale and the certificate of sale be set aside, and that said certificate of sale be canceled, and that the defendant, R. H. Lindsay, be barred, etc., of all right, etc., under said sale, and that the defendant, L. B. Lindsay, as sheriff, be perpetually enjoined and restrained from all further proceeding under said sale, etc.

The only issue presented to this court for its determination is a plea in bar of the right of the plaintiff to bring this action. The answer in bar to the facts set up in plaintiff's complaint is as follows: "That on the twelfth day of May, A. D. 1869, in the above-named court and in the above-named county, in an action brought by the above-named plaintiff against the above-named defendants, and for the same cause of action as that set forth in said complaint herein, these defendants duly recovered a final judgment against the said plaintiff, dismissing his complaint, and for the sum of thirty dollars and ninety cents, United States gold coin, as their costs and disbursements, which judgment was duly recovered and given against the said plaintiff upon the merits thereof."

The court below held that this plea was sufficient, and on reading the record in that case gave judgment for the defendant and against the plaintiff, dismissing the plaintiff's complaint with costs against him.

In this case, a motion for a new trial having been made and overruled, the question is now submitted to this court for its decision. The statement for a new trial shows that the plaintiff, previous to the commencement of this action, on the eighth day of April, 1869, filed his complaint in said district court of Ada county, setting forth certain facts constituting his cause of action, and praying the same relief asked for in his said second complaint. To that complaint a demurrer was filed setting forth as a ground of demurrer, "that the complaint did not state facts sufficient to constitute a cause of action." Upon the joinder in demurrer the district court sustained the demurrer, and the plaintiff took leave to amend; but upon a failure to do so within the time allowed by the court, on the defendants' motion the plaintiff's complaint was dismissed. The defendants now claim that the order or judgment dismissing the plaintiff's complaint of May 12, 1869, is a bar to this action; to sustain this view of the case they cited the following authorities, to wit: 1 Daniell's Ch. Pr. 683, declaring that "a decree or order of the court by which the rights of the parties have been determined or another bill for the same matter dismissed, may be pleaded to a new bill for the same matter." In support of this doctrine the defendants have also referred us to 1 Daniell's Ch. Pr. 799; Holmes v. Remson, 7 Johns. Ch. 286; Perine v. Dunn, 4 Johns. Ch. 140; Story Eq. Pl., sec. 456, and to several other cases.

The cases referred to by defendants seem to establish the principle, that the dismissal of a complaint upon the merits, without the direction of the court, shall be without prejudice, etc.; such an order or judgment may be pleaded in bar to a new complaint for the same matter.

In this case, the plaintiff and appellant claims and insists that the order or judgment of May 12, 1869, dismissing his complaint in his action then pending, and which order or judgment is now interposed in this case as a bar to his right to re-

cover in this action, is not an order or judgment dismissing his said complaint upon the merits, for the reasons that in that case the district court sustained a demurrer to the complaint, and in doing so the court decided that the complaint was so defective that it did not state facts sufficient to constitute a cause of action, and because it was so defective the said district court decided that it was bad, and sustained a general demurrer to the same, and the plaintiff failing to amend his complaint, it was for that reason dismissed, and for no other reason. The appellant further...