135 P. 717 | Ariz. | 1913
Appellant’s action is for damages for personal injuries alleged to have been sustained by him on July 31, 1910, while in the employment of appellee as a brakeman. This action is the second action instituted in the same court, between the same parties, upon the same cause of action. The first suit was begun on October 14, 1910. To the first suit the defendant (appellee) pleaded in bar that plaintiff (appellant) had, for a good and valuable consideration, acknowledged full satisfaction of any cause of action that he had against the appellant and, as evidence of release and satisfaction, attached to the plea two receipts or written agreements dated, respectively, August 24, 1910, and August 25, 1910. Thereafter, on March 13, 1911, the court made and entered the following order: “This cause coming on to be heard upon defendant’s plea in bar, R. P. Talbot appearing for plaintiff, Paul Burks appearing for defendant, and plaintiff confessing the plea in bar and consenting thereto, it was ordered that this cause be and, the same is hereby dismissed with prejudice; plaintiff to pay all costs.”
The appellant, disregarding the first action and the proceedings and judgment therein, on July 31, 1911, commenced
Appellee filed objections to the reply in this: That it failed to state facts sufficient to constitute a defense to the plea in bar and was barred by the statute of limitations. Upon the pleadings the court sustained appellee’s plea in bar and dismissed the action. The appeal is from the order of dismissal.
It is the contention of appellant that the order of dismissal in the first action is in the nature of the common-law judgment of retraxit, but that it lacks one of the elements of a judgment of retraxit, to wit, the consent or knowledge of the appellant. “ ‘A retraxit is where the party, plaintiff or defendant, comes into court in proper person where his cause is depending and says that he will not proceed any further in his cause. Now, this'is a bar to the action forever.’ 2 Practical Reg. C. P. 582.” Sheffer v. Perkins, 83 Vt. 185, 25 L. R. A., N. S., 1313, 1315, 75 Atl. 6.
While the confession and consent of attornej- may have relieved the court from a thorough and searching investigation of the pleadings to determine the issue, it cannot be truthfully said that the judgment resulted from such admission. The appellee had pleaded two releases executed by appellant, and they were before the court, and the court might have found, without any admission of attorney and even against his protest, that the releases were a full aud complete satisfaction of any claim of damages by the appellant. There was no renunciation by the attorney of his client’s right of action but upon a consent induced by releases or acknowledgments of satisfaction executed by appellant himself, the effect of which the court determined. It will be observed that the action was not dismissed on any compromise or settlement made or attempted to be made by the attorney, as in the Hallack v. Loft case, supra.
A decree of dismissal, “unless made because of some defect in the pleadings, or for want of jurisdiction, or because the complainant has an adequate remedy at law, or upon some other ground which does not go to the merits, is a final determination. Where words of qualification, such as ‘without prejudice,’ or other terms indicating a right or privilege to take further legal proceedings on the subject, do not accompany the decree, it is presumed to be rendered on the merits." Durant v. Essex Co., 7 Wall. 107, 19 L. Ed. 154. The same rule applies to common-law judgments. Durant v. Essex Co., 8 Allen (Mass.), 103, 85 Am. Dec. 689, note.
Appellant tries to avoid the finality and binding effect of the judgment of dismissal in his replication by charging his attorney with fraud in consenting to such judgment. Aside from the question as to whether he may thus collaterally attack the judgment for fraud, it appears from his own admission that he learned that his first action was dismissed on July 25, 1911. No effort on his part to have said order of dismissal set aside or held for naught on account of fraud was made until the filing of his reply on November 18, 1912, almost a year and four months after the discovery of the •alleged fraud. Subdivision 5, section 1, Act No. 16, Laws •of 1903, provides that an action for relief on the ground of fraud or mistake must be commenced by the aggrieved party within one year after the discovery of the facts constituting the fraud or mistake. Granting that the replication alleging fraud was equivalent to the commencement of an action, it was filed more than one year after the discovery of the alleged fraud and at a time when his right of action on that account was barred.
The judgment of the trial court is affirmed.
FRANKLIN, C. J., and CUNNINGHAM, J., concur.
NOTE.—On the question of the right of an attorney to enter retraxit, see note in 25 L. B. A., N. S., 1313.