123 Ky. 59 | Ky. Ct. App. | 1906
Opinion by
Affirming.
On March 6, 1899, appellant Sallie Cain, who was then Sallie Lee, . instituted an action in the Franklin circuit court against the appellee, the Hnion Central Life Insurance Company, on a contract of insnrancé made on September 24, 1894, whereby, as she alleged, the life of J. T. Lee was insured in the sum of $2,000 for her benefit. The defendant answered, pleading, among other things, a .contract limitation of one year in bar of the action. She replied to the answer. The circuit court sustained a demurrer to so much of her reply as related to the contract limitation of one year, and, she declining to plead further, a judgment was entered that the action be dismissed absolutely and. that the defendant recover its cost. From this judgment she appealed to this court, and by an equally divided court the judgment of the circuit court was affirmed. Lee v. Insurance Co., 56 S. W. 724, 22 Ky. Law Rep. 1712. Subsequently, on March 23, 1905, she brought this
After the decision of the former case this court in the case of Union Central Life Insurance Company v. Spinks, 119 Ky. 261, 83 S. W. 615, 26 Ky. Law Rep. 1205, 69 L. R. A. 264, overruled the opinion rendered in the former case. But, although this is true, the judgment in that case is binding upon the parties to the action. In Thompson v. Louisville Banking Company, 55 S. W. 1080, 21 Ky. Law Rep, 1611, we had this precise question presented, and in disposing of it we said: “The opinion rendered in these cases is the law of the cases, however erroneous it may have been. The fact that it was overruled in a subsequent case between other parties destroys it as a precedent in other cases, but it is nevertheless binding on the parties to this controversy. The rule is elementary that a' matter once litigated and determined finally cannot be relitigated between the same parties. When these cases were returned to the court below, that court had no alternative but to obey the mandate of this court, and upon appeal from that judgment this court is as much bound by that mandate as the court below was. If this were not so, litigation would be interminable, and a judgment of this court finally settling the rights of the parties would be only the starting point for new litigation.” In Cincinnati, etc., R. R. Co. v. Pemberton, 9 Ky. Law Rep. 859, the plaintiff, after an opinion by this court, dismissed his action without prejudice and brought a new suit on the same cause of action. The same defense was interposed, and on appeal it was held that the court must regard it as the same case which was considered on the former appeal, and that the judgment then rendered was conclusive of all questions before the
It is earnestly contended for the appellant that a judgment upon a plea of limitation is not a judgment on the merits, and does not bar the plaintiff in a subsequent suit on the same cause of action. We cannot accede to this view. The judgment on the former appeal determined that the plaintiff’s cause of action was barred by limitation. The parties were before the court. The question whether she could maintain the action or not was the thing litigated and determined. It having been determined then that she could not maintain the action by reason of the lapse of time, that judgment is conclusive upon the parties. In Freeman on Judgments, § 260, the rule as to what is a judgment on the merits is thus well stated: “To create such a judgment, it is by no means essential that the controversy between plaintiff and defendant be determined ‘on the merits,’ in the moral or abstract sense of these words. It is sufficient that the status of the action was such that the parties might have had their lawsuit disposed of according to their respective rights, if they had properly presented all their evidence, and the court .had properly understood the facts and correctly applied the law.” In section 261 it is pointed out that the rule does not apply to judgments of nonsuit, nolle prosequi, etc., and in section 267 the rule as to judgments on matters of law is thus stated: “A judgment on demurrer to the plaintiff’s complaint is conclusive of everything necessarily determined by such judgment. If the court decides that plaintiff has not stated facts sufficient to constitute a cause of action, or that his complaint is otherwise liable to any objection urged against it' upon demurrer, such decision does not
If any court err in sustaining a demurrer and entering judgment for defendant thereon, when the complaint is sufficient, the judgment is nevertheless “on the merits.” It is final and conclusive until reversed on appeal. Until then the plaintiff cannot disregard it and maintain another action. The effect of a judgment still in force is never diminished on ^account of any mistake of law on which it is founded. A judgment in favor of defendant on demurrer, to an answer is a bar to a subsequent suit for the same cause of action. In the former suit referred to, on the demurrer to the reply it was determined that upon the facts stated the plaintiff could not maintain her action and that the action “be dismissed absolutely.” This, under all the authorities, was a judgment on the merits. In 24 Am. & Eng. Ency. of Law, p. 796, the rule is thus stated; “A finding against a party, either upon final hearing or demurrer, that his cause of action as shown by him is barred by the statute of limitations, or by laches, is a decision upon the merits concluding the right of action.” See, also, Francis v. Wood, 81 Ky. 16; 4 Ky. L. R 16, Parkes v. Clift, 9 Lea (Tenn.) 524; People v. Preston, 62 Hun, 188, 16 N. Y. Supp. 488; Id., 131 N. Y. 644, 30 N. E. 866; Price v. Bonnifield, 2 Wyo. 80; 2 Black on Judgments, §§ 694, 699. Judgment affirmed.
