Western Coal & Mining Company v. Hilvert

• Decision Date: 02 July 1945
• Docket Number: Civil 4714
• Citation: 160 P.2d 331,63 Ariz. 171
• Parties: WESTERN COAL & MINING COMPANY, Appellant, v. FRED G. HILVERT, Appellee
• Court: Arizona Supreme Court

160 P.2d 331

63 Ariz. 171

WESTERN COAL & MINING COMPANY, Appellant, v. FRED G. HILVERT, Appellee

Civil No. 4714

Supreme Court of Arizona

July 2, 1945

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge.

Judgment reversed with instructions.

Messrs Ellinwood & Ross, and Mr. Jos. S. Jenckes, Jr., for Appellant.

Messrs Kramer, Morrison, Roche and Perry, for Appellee.

LaPrade J. Stanford, C. J., and Morgan, J., concur.

OPINION

LaPrade, J.

This action comes to this court on appeal for the second time. For a full statement of the facts, reference is made to our former opinion. See Western Coal & Mining Co. v. Hilvert, 60 Ariz. 537, 142 P.2d 411. The action was instituted by appellant for the purpose of securing judgment against appellee upon three promissory notes, two of which were dated at Cincinnati, Ohio, and made payable at St. Louis, Mo. The third note was dated at St. Louis, Mo., and made payable at St. Louis. The notes became due in January, 1934, and this action was commenced in September, 1941. Anticipating a plea of limitations, appellant set forth in its complaint that appellee on December 20, 1938, by letter in writing signed by him, acknowledged the justness of his indebtedness to appellant under said notes and impliedly promised to pay same.

Appellee filed an answer in which he invoked the statute of limitations as set forth in Secs. 29-204, 29-205, and 29-206, Arizona Code Annotated 1939. To this plea of the statute of limitations appellant filed a reply alleging that between the maturity date of the notes and date of filing the action appellee "was absent from the State of Arizona from time to time, and that such absences aggregated fifty percent or more of such period," and that under the provisions of Sec. 29-301, Arizona Code Annotated 1939, the time of defendant's absences from the state cannot be accounted or taken as a part of the time limited by the provisions of Secs. 29-204, 29-205, and 29-206. The motion by appellee to strike the allegations of appellant's reply relative to appellee's absences from the state was granted. The court then granted motion by appellee for judgment on the pleadings and judgment followed.

On the former appeal, two legal propositions were submitted to this court, to-wit:

1. Whether the lower court erred in denying appellant's motion for summary judgment, thus holding that the letter of December 20, 1938, did not constitute an acknowledgment by the appellee of the indebtedness under the notes sued upon from which an implied promise to pay could be deduced.

2. Whether the lower court erred in granting appellee's motion to strike a portion of paragraph III of appellant's reply to appellee's amended and supplemental answer.

The first proposition was by this court determined adversely to the contention of the appellant. A motion for rehearing in this court was filed and denied. The appellant in its brief on this appeal seeks to have this court again consider this question and change its opinion thereon. When the motion for a rehearing had been denied, the ruling of this court with respect to whether the letter constituted an acknowledgment of indebtedness from which an implied promise to pay could be deduced became the final law of this case.

In the early case of Snyder v. Pima County, 1898, 6 Ariz. 41, 53 P. 6, there appears the following pertinent language:

". . . Even though we should not be convinced that this court has made a mistake in its former judgment, directing the district court to overrule the demurrer and proceed to trial, yet that judgment is the law in this case. Its construction is more than stare decisis. It becomes res adjudicata. While this court may reserve to itself the right to reverse that decision as it may be applied to another case, yet it is well settled that a judgment of an appellate court in a case becomes the law of that particular case, and is not subject to review thereafter on second appeal. (Citing cases.) . . ."

This rule has been repeatedly adhered to in this state. See Hudspeth v. Blue Bar Taxicab, etc., Co., 28 Ariz. 440, 237 P. 382; Betts v. Lightning Delivery Co., 42 Ariz. 105, 22 P.2d 827; and Miller Cattle Co. v. Francis et al., 38 Ariz. 197, 298 P. 631.

This court in its former opinion failed to pass upon the second issue, setting forth the following reason for its action [60 Ariz. 537, 142 P.2d 413]:

"Since there was no record in this case, such as a transcript of evidence, we are unable to, at this time, decide the issue of the various absences of the appellee from the state."

In denying the motion for a rehearing, the court used the following language on page 413 of 142 Pac. (2d):

"On October 18, 1943, we remanded this cause for a new trial on the issue as to whether the statute of limitations had been tolled by the absences of appellee from the state. In our opinion rendered at that time we held the statute had run unless it was tolled by such absences and that from the record we could not determine that fact."

In its motion for a rehearing on the first appeal, after the court had remanded the case for a new trial, appellant set up the following matter:

"This ruling of the Court creates an anomalous situation. If we are now relegated to the lower court for a 'new trial' to the end that evidence of appellee's absences may be adduced, we find ourselves in exactly the same position we occupied prior to the appeal -- we can not introduce such evidence because the allegations which would support the same have been stricken. If this Court intended to reverse and set aside the order of the lower court striking our reply so that we may proceed to trial thereon, we submit that the opinion and mandate should specifically so state. If this was not the Court's intention, then we respectfully submit that the Court has no alternative other than to now consider and determine whether or not the allegations of our reply avoid appellee's plea of limitations as a matter of law. Unless the Court will do so, the case is at a stalemate."

After the mandate reached the lower court, appellee filed a motion for judgment on the pleadings. Appellant then moved that the court vacate the order striking the allegations of appellant's reply with respect to appellee's absences from the state. In its supporting memorandum, appellant contended that the lower court's judgment had been reversed to the end that evidence of appellee's absences from the state could be adduced at a trial of the case, and that for such purpose it was necessary for the lower court to reinstate the reply as a basis for the introduction of such evidence. Upon the hearing of such motions, the lower court first denied appellant's motion to vacate the order striking the allegations of appellant's reply, and then ruled:

"In view of the fact that I have denied the motion to vacate that ruling, upon the ground that I do not believe that these various absences can be tacked so as to toll the statute of limitations, there is nothing else for me to do except to grant the defendant's motion for judgment on the pleadings, and it is so ordered."

Judgment was then entered for the appellee. Hence this appeal is back in the lap of this court. Shakespeare envisioned this situation in the following lines:

"The time has been,

That when the brains were out the man would die,

And there an end; but now they rise again,

With twenty mortal murders on their crowns,

And push us from our stools."

Macbeth, Act III, Sc. 4

Appellant has made two assignments of error, the first of which reads as follows:

"The court erred in denying appellant's motion to vacate and set aside its order striking the portions of appellant's reply relative to appellee's absences from the State of Arizona for the reasons:

"(a) Under the provisions of Section 29-301, Arizona Code Annotated 1939, appellee's alleged absences from the state tolled the statute of limitations and appellant had the right to plead such facts in its reply in avoidance of the plea of limitations set forth in appellee's amended answer.

"(b) The order of the Supreme Court reversing the judgment and remanding the case for trial required the court to reinstate appellant's reply and to permit appellant to adduce evidence of appellee's alleged absences from the state upon a trial of the case."

The second assigns as error the rule of the trial court in determining that the letter was not an acknowledgment of the justness of appellee's indebtedness on the promissory notes, and was not an implied promise to pay the same. The former judgment disposes of this assignment. This reassignment on this point has no basis upon which to stand.

From the disposition of this case on the former appeal and on the motion for a rehearing, it was undoubtedly the intention of this court that plaintiff below should be permitted to adduce evidence of appellee's alleged absences from the state. We now conclude that this court should have specifically declared the law as to whether or not appellee's alleged absences from the state tolled the statute of limitations. The point was squarely put in issue in the first instance by the order of the trial court in striking appellant's reply to the affirmative defense of the statute of limitations.

It is the position of appellee (1) that the statute referring to absences from the state (§ 29-301) applies only where the cause of action accrues within the state; (2) that successive absences from the state may not be aggregated or tacked together; and (3) that if the defendant could have been personally served with summons in the State of Arizona during the time limited by the Arizona statute of limitations, the statute is inapplicable, notwithstanding that...