Reilly v. Perkins

• Decision Date: 15 March 1899
• Docket Number: Civil 634
• Citation: 56 P. 734,6 Ariz. 188
• Parties: JAMES REILLY, suing for the benefit of the County of Cochise, Plaintiff and Appellant, v. W. R. PERKINS et al., Defendants and Appellees
• Court: Arizona Supreme Court

56 P. 734

6 Ariz. 188

JAMES REILLY, suing for the benefit of the County of Cochise, Plaintiff and Appellant, v. W. R. PERKINS et al., Defendants and Appellees

Civil No. 634

Supreme Court of Arizona

March 15, 1899

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. George R. Davis Judge. Affirmed.

The facts are stated in the opinion.

James Reilly, and Allen R. English, for Appellant.

William Herring, and Barnes & Martin, for Appellees.

OPINION

DOAN, J.

-- This action was brought in March, 1894, by appellant, Reilly, as a taxpayer, to recover, for the use of Cochise County, from the chairman and clerk of the board of supervisors, as individuals, the money that had been ordered paid by them from the county treasury to the clerk of the board of supervisors for services rendered by him as clerk of said board. After several demurrers by defendants and amendments by plaintiff, defendants filed a general demurrer and answer on November 11, 1896, to plaintiff's second amended and supplemental complaint, and on the nineteenth day of November, 1896, the demurrer was submitted to the court and taken under advisement. On July 8, 1897, the court overruled the demurrer and continued the case for the term. On December 8, 1897, the personnel of the court and of counsel for defendants having changed in the mean time, the case came on regularly for trial; whereupon the counsel for defendants moved the court for a judgment for the defendants "on the facts alleged and admitted in the complaint," whereupon the plaintiff objected to the granting of said motion on the ground that the matter thereof was res adjudicata by reason of the order of July 8, 1897 overruling defendants' demurrer to the complaint. This objection was by the court overruled, and the motion was granted, and judgment was rendered for defendants; whereupon plaintiff appealed from the ruling of the court.

The proposition of appellant, and the only one relied upon in this case and presented to this court, is the alleged error of the court in granting defendants' motion for judgment on the pleadings, upon the ground that the matter was res adjudicata by reason of the prior order of July 8, 1897 overruling defendants' demurrer to the complaint; and appellant submits that this error is sufficient to cause a reversal of the judgment. The point is not raised by the appellant that the court erred in granting the motion because of the sufficiency of the complaint. It is not, therefore necessary to go into the merits of the pleadings. It seems to be conceded by the appellant that the complaint was not sufficient to support a judgment for the plaintiff; but appellant relies upon the proposition that the order of the court of July 8, 1897, overruling the demurrer, had become the law of the case, by which the court was yet bound, irrespective of the question whether such ruling...