Wilson v. Lowry
| Decision Date | 16 April 1898 |
| Docket Number | Civil 594 |
| Citation | 5 Ariz. 335,52 P. 777 |
| Parties | LUTHER WILSON, Plaintiff and Appellant, v. JAMES R. LOWRY et al., Defendants and Appellees |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. J. J. Hawkins Judge.
Reversed.
James H. Wright, for Appellant.
The appellees interposed a plea of res adjudicata, and at the trial put in evidence therein the complaint, answer judgment, and remittitur of the supreme court showing the affirmance of the judgment of the court below on the general demurrer in case No. 2242. How that judgment can be claimed as an adjudication of the merits of the case is not clear. A former judgment on a general demurrer is not a bar, if additional facts in the new complaint complete a cause of action. The court below so held, and overruled their plea of res adjudicata. Wetherbee v. Carroll, 33 Cal. 556; Terry v. Hammonds, 47 Cal. 32; City of Los Angeles v. Mellus, 59 Cal. 444; Morrell v Morgan, 65 Cal. 575, 4 P. 580; Gerrish v. Bunker, 6 Minn. 14.
A former judgment must have been upon the merits. A judgment on defective pleadings will not do; it is not res adjudicata. Barnes v. District of Columbia, 91 U.S. 546; Evansville v. Crawfordsville R. R. Co., 19 Ill. 207.
Herndon & Norris, for Appellees.
"A demurrer to a complaint because it does not state facts sufficient to constitute a cause of action raises an issue which, when tried, will finally dispose of the case as stated in the complaint on its merits, unless leave to amend or plead over is granted." Alley v. Nott, 111 U.S. 472, 4 S.Ct. 495; Scharff v. Levy, 112 U.S. 711, 5 S.Ct. 360; City of Aurora v. West, 7 Wall. 107.
"If a demurrer to a complaint is sustained, and plaintiff fails to either amend or appeal, he is debarred of a second action." Bomar v. Parker, 68 Tex. 435, 4 S.W. 599.
The property destroyed had not been claimed as a homestead, and was therefore subject to attachment for debt. Rev. Stats., par. 2084.
The money due upon adjustment for the loss represented the destroyed property, and should for the purposes of this case be governed by the same rule. Howes v. Lathrop, 38 Cal. 493.
The converse of the proposition is true. Houghton v. Lee, 50 Cal. 101; Cameron v. Fay, 55 Tex. 58.
The facts are stated in the opinion.
This was an action by the appellant to recover against James R Lowry and the sureties upon his official bond as sheriff of Yavapai County. The complaint sets forth, in substance, that Wilson was the head of a family in said county and territory, having two children of tender years wholly dependent on him for their support; the election and qualification of Lowry as sheriff; the execution and form of his official bond, conditioned that Lowry "shall well and faithfully in all things perform and execute the duties of said office of sheriff . . . that are now required by law, or that may be required by any law which may be enacted . . . during his continuance in office, without fraud, deceit, or oppression, and shall pay over all moneys that shall come into his hands as such sheriff"; that in certain suits against Wilson by creditors, which had proceeded to judgment against him, there was collected by Lowry, as sheriff, from the Prussian National Insurance Company and the Niagara Fire Insurance Company, debtors of Wilson, the sum of $ 529.46, by execution and garnishment process; that prior to the service of said process appellant duly filed with the said Lowry, as sheriff as aforesaid, a notice that he was the head of a family, that said money then in the hands of said insurance companies was all the personal property that he owned, and that he designated and demanded the same as exempt to him from garnishment, execution, and forced sale; that immediately after the said money came into Lowry's possession, by virtue of said process, the appellant again filed with him an express, distinct, and formal demand for the same, claiming and designating it as exempt and reserved to him (appellant) as the head of a family, but that the said sheriff, in violation of his duty as such under the laws of this territory, has failed and refused to pay over to appellant the amount so collected, whereby he claims the appellees have become liable to him for the said amount, together with twenty-five per cent thereof as additional damages, and interest on said sum of $ 529.46, at the rate of ten per cent per month, being the penalties mentioned in paragraph 502 of the Revised Statutes. Besides a general demurrer, which was overruled by the lower court, the appellees answered, alleging that in a former suit in the same court between the same parties the same cause of action was litigated, a judgment rendered in favor of these appellees, which judgment was on appeal affirmed by this court, and that the same constitutes a bar to the pending action. Their further answer is a general denial. The case was tried before the lower court, sitting without a jury, and resulted in a judgment for the appellees. From the judgment and the order of the court overruling his motion for a new trial, Wilson has appealed. The appellant contends that there was no evidence to support the finding and judgment as rendered, and that, upon the facts as alleged and proven, he was entitled to recover.
It is provided in paragraph 1956 of title 27 ("Exemptions") of the Revised Statutes, that "there shall be reserved to every family exempt from attachment and execution and every species of forced sale for the payment of debts, personal property not to exceed in value the sum of one thousand dollars." The succeeding paragraphs of the same title provide that the head of the family entitled to such exemption shall designate the personal property which he claims as exempt, not exceeding said value, and prescribe the duties of the officer holding the execution, and the proceedings to be had in case the defendant fails to make the designation himself, or there is a disagreement as to value, etc. On the trial of the case in the court below the following facts were either admitted or conclusively established by testimony that was not controverted in the slightest particular: That ever since the commencement of the creditors' suits Wilson had continuously resided in Yavapai County, Arizona, and been the head of a family; that the sum of $ 529.46 was collected from the said insurance companies by Lowry, as sheriff, through execution and garnishment process in said creditors' suits; that this money was the property of Wilson, due to him from the adjustment of insurance upon his house which had been destroyed by fire; that the total amount of the insurance due to him from the companies was $ 850, and that he was not the owner of any other personal property; that no notice of said garnishment proceedings had been given to Wilson, but that his counsel appeared for him on the day when the default judgments were rendered against the garnishees, and protested against the entry of the same; that prior to the service of the process through which the said sum of $ 529.46 came into the possession of Lowry, as sheriff, and again after the money came into his hands, appellant served upon said sheriff an express, distinct, and formal demand for the same, claiming and designating the said money as exempt and reserved to him as the head of a family; that these notices were in writing, and their service was admitted; that the...
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