Rousselle v. Jewett
| Decision Date | 14 December 1966 |
| Docket Number | No. 8054,8054 |
| Citation | 101 Ariz. 510,421 P.2d 529 |
| Parties | Robert ROUSSELLE and Rachel L. Rousselle, husband and wife, Appellants, v. Roy JEWETT, Appellee. |
| Court | Arizona Supreme Court |
Lorin G. Shelley, Phoenix, for appellants.
William C. Taylor, Ryley, Carlock & Ralston, Phoenix, for appellee.
In 1954, E. A. Moore, Jr., and Lavena S. Moore, husband and wife, hereinafter designated as the Moores, delivered a note secured by a first mortgage on the property in question to Farmers New World Life Insurance Company, hereinafter designated Farmers. In 1957, Robert Rousselle and Rachel L. Rousselle, husband and wife, hereinafter designated as the Rousselles, purchased the property, giving the Moores a promissory note and a second mortgage. The Moores assigned this note and mortgage to Omega Construction Company, hereinafter designated Omega, in 1958. The Rousselles then sold the property to Myra L. McDonell, who agreed to be liable as assignee on the note and the second mortgage that the Rousselles had originally given to the Moores. Myra L. McDonell also gave her own promissory note and a third mortgage to the Rousselles. On July 22, 1959, Omega brought suit (Cause No. 109016, Superior Court of Maricopa County, State of Arizona) on the second mortgage and attached promissory note due to an alleged default of the July 1, 1959 payment due under this note.
By an uncontradicted affidavit in the instant case, after negotiations between the parties in this July 1959 action, Omega agreed to move for a dismissal against itself if the court would assign all the back payments which it held in its custody to Omega. In accordance with this agreement, on March 18, 1960, the superior court made an order dismissing Omega's complaint and ordering that the funds then held by the court be paid to Omega. This dismissal was with prejudice, and by uncontradicted affidavit it is explained that the reason the requested order was with prejudice is that Myra L. McDonell wanted to escape any liability for acceleration of the note payments due to the late payment in July 1959.
On May 2, 1960, the note with the same second mortgage attached was assigned to Roy Jewett. On September 1, 1960, there was another default in the payments due under this note, and on September 15, 1960, there was a default on the note held by Farmers to which the first mortgage was attached. Farmers brought a suit against defendants the Moores, the Rousselles, Myra L. McDonell, Omega, Roy Jewett, and others, to foreclose any interest of defendants in the mortgaged property. Jewett answered Farmers complaint; and filed a cross-claim against Myra L. McDonell, the Rousselles, and others, on February 15, 1961, because of the alleged defaults under the note attached to the second mortgage. Farmers recovered a judgment in May 1961, and Myra L. McDonell and the Rousselles answered Jewett's cross-claim the following month. Both Jewett and the Rousselles moved for a summary judgment on the cross-claim, and Jewett filed affidavits in accordance with his motion. The superior court granted Jewett's motion for summary judgment, and, on March 20, 1963, entered a final judgment in accordance with this motion. The Rousselles appeal from the summary judgment alleging a sole assignment of error that the previous motion to dismiss with prejudice granted by the superior court against Omega was res judicata of the action in the instant case.
The complaint of Omega in Cause No. 109016 based its action on Myra L. McDonell's failure to pay the note payment due in July 1959. The cross-claim in the instant case is based on a default in payments since October 7, 1960 (payment on that date was for the payment due September 1, 1960). The Rousselles submitted no affidavits in the instant case, and in their memoranda merely rely on the proposition that the motion to dismiss with prejudice in Cause No. 109016 precludes any further liability under the note in question. To facilitate discussion we can just as easily treat the motion to dismiss with prejudice in Cause No. 109016 as any other judgment, and ignore the fact that it was arrived at by a stipulation of the parties in that action.
The Rousselles rely entirely on the proposition that a final judgment is res judicata as to all issues that were raised or could have been raised under the pleadings of the former action. They point out that in Cause No. 109016 the right to acceleration under this note was pleaded and contested, and that the order in that action was against Omega with whom Jewett is in privity and thus precludes Jewett from bringing this action for acceleration of payments and foreclosure of the attached mortgage. For a prior suit to be res judicata, the same issues must be decided therein which were raised in the second cause. Only such matters are adjudicated in a former judgment which appear upon its face to have been adjudicated or which were actually and necessarily included therein or necessary thereto. Rights, claims, or demands--even though they grow out of the same subject matter--which constitute separate or distinct causes of action not appearing in the former litigation, are not barred in the latter action because of res judicata. Daugherty v. Board of Trustees, 111 Cal.App.2d 519, 244 P.2d 950; Title Guarantee & Trust Co. v. Monson, 11 Cal.2d 621, 631, 81 P.2d 944; and...
To continue reading
Request your trial
-
McNair v. Maxwell & Morgan PC
...to foreclosure. Res judicata applies only to claims that "could have been litigated" in the earlier lawsuit. Rousselle v. Jewett , 101 Ariz. 510, 421 P.2d 529, 531 (1966).Defendants argue that when Plaintiff filed her motions to cancel the sheriff's sale and for relief from the judgment, sh......
-
E.C. Garcia and Co., Inc. v. Arizona State Dept. of Revenue
...the same for purposes of res judicata if proof of different or additional facts will be required to establish them. Rousselle v. Jewett, 101 Ariz. 510, 421 P.2d 529 (1966). In this case, a distinct and essential element of the Taxpayers' claim under A.R.S. section 11-506 is the proposition ......
-
Power Road-Williams Field LLC v. Gilbert
...to prevail in the second action than that needed in the first, then the second action is barred.” Id.; see also Rousselle v. Jewett, 101 Ariz. 510, 421 P.2d 529, 531 (1966). The “same evidence” test is quite liberal, and permits a plaintiff to avoid preclusion “merely by posturing the same ......
-
Phoenix Newspapers, Inc. v. Department of Corrections, State of Ariz.
...is needed to prevail in the second action than that needed in the first, then the second action is barred. See Rousselle v. Jewett, 101 Ariz. 510, 421 P.2d 529 (1966); Wilson v. Bramblett, 91 Ariz. 284, 371 P.2d 1014 (1962); Pierpont v. Hydro Mfg. Co., 22 Ariz.App. 252, 526 P.2d 776 (1974).......