Pepper v. Donnelly

• Citation: 87 Ky. 259
• Parties: Pepper v. Donnelly.
• Decision Date: 15 May 1888
• Court: Court of Appeals of Kentucky

87 Ky. 259

Pepper v. Donnelly.

Court of Appeals of Kentucky.

May 15, 1888.

APPEAL FROM KENTON CIRCUIT COURT.

W. K. BENTON FOR APPELLANT.

HALLAM & MYERS AND McKEE & FINNELL FOR APPELLEE.

JUDGE HOLT DELIVERED THE OPINION OF THE COURT.

The appellee, Charles Donnelly, in 1876, became the surety of the administrator of John Pepper. In 1880 the appellant, William Pepper, as the distributee, brought an action upon the bond. A general demurrer to the petition having been overruled, the appellee relied upon the execution of a new bond in June, 1879, with other surety, as releasing him from all liability. The answer presented nothing else as a defense, and its averments in no way aided the petition. A demurrer to it was also overruled, and a reply then filed, denying that the execution of the new bond, which contained a covenant of indemnity to Donnelly as to his suretyship, operated to release him, or that this was its legal effect. An amended reply, averring that the administrator had received the assets before the execution of the new bond, was tendered and rejected. By agreement the law and facts were submitted to the court; and it, after hearing the testimony, dismissed the action as to Donnelly. The judgment does not show the ground upon which it was based. A motion for a new trial was overruled; a bill of exceptions filed, showing that all the assets came to the hands of the administrator prior to the execution of the new bond; an appeal was then taken, and the judgment affirmed by the Superior Court. Its opinion, fairly interpreted, put the affirmance upon the ground that the petition was defective. It substantially, if not in so many words, says so. After this, the appellant proceeded against Donnelly again in this action. The answer relies upon the former suit and judgment therein as a bar. It contains no averment that issue was joined in the former suit, or that it was heard upon the merits. There was no demurrer to it, however, and it was aided by the reply, which substantially avers that the first action was dismissed upon the ground that the petition did not state a cause of action, and could not, therefore, have been tried upon the merits. A properly certified copy of the record of the original suit was referred to in the reply, and by agreement made a part of the record. A demurrer having been sustained to the reply, the plea in bar was held good, and the action dismissed as to Donnelly.

The question presented upon this appeal is, what effect is to be given to the judgment in the former action? In rendering it the court did not state its conclusions of law and fact; and there is no averment that the record of that suit does not show all that occurred. We must, therefore, look to it alone to determine whether it was considered upon the merits or disposed of upon technical grounds.

An estoppel by a former judgment is based upon public policy. It demands that when a fact has been judicially and finally determined between the same parties, it shall be at rest. Interest reipublicæ ut sit finis litium. It is, however, equally well settled that a former judgment, to be a bar, must have been a decision upon the merits. Thus a judgment for want of jurisdiction, or by reason of a technical defect in the pleadings, or as to parties, or upon any ground not going to the merits, will not prevent a second action. It does not determine the rights of the parties. This is true of a judgment of non-suit. (Hughes v. United States, 4 Wall., 232; Smith v. McNeal, 109 U. S., 426; Kendal v. Talbot, 1 A. K. M., 321; Insurance Company v. Broughton, 109 U. S., 125.) Were it otherwise, one would be deprived of his "day in court," and justice be defeated; and while rules are necessary to the administration of law, they should not be so technical, or procrustean, as to deform it, and hamper justice by a sort of judicial jugglery.

Where a party relies upon a former judgment as a bar, the burden is upon him to show that the merits of the case were considered. This must appear from the record, or by evidence aliunde, where it is admissible. (Vaughan v. O'Brien, 39 Howard Pr. Rep., 515.) In a case like this one, where the record shows that a demurrer to the petition was overruled, and the case then heard by the court upon the law and the facts, this might be presumed, in the absence of any rebutting circumstance. In such a case these facts would purport a trial upon the merits. They would not be conclusive, however. A ruling upon a demurrer does not prevent the court from again considering the legal question presented by it. (Post v. Pearson, 108 U. S., 418.) It may hear the entire case, and then dispose of it upon some technical question, as, for instance, a defect in the pleadings.

In this instance, it is manifest that the defense presented in the former suit was not a valid one. The execution of the new bond with a covenant of indemnity did not, under the then and now existing law, release Donnelly from liability for any act theretofore...