4 Colo. App. 296 | Colo. Ct. App. | 1894
delivered the opinion of the court.
Unless we greatly misread the record, the court rendered judgment for the defendants on the hypothesis that the issue had been previously disposed of in another suit between the same parties. This conclusion was undoubtedly erroneous, and necessitates a reversal of the judgment.
In 1883, Raymond Kaltenbaeh brought replevin suit in the superior court against one Yon Richthofen and his wife to recover the possession of an “ Orchestrion.” He gave the statutory bond which was signed by three of the present defendants as sureties. That suit proceeded to judgment, and the defendants were adjudged entitled to the return of the instrument or its value. Afterwards the present appellant, Charlotte R. Gallup, brought suit in the superior court against Kaltenbaeh and his sureties to recover the value and damages for the detention. The defendants demurred to the complaint, and the demurrer was sustained; but the entry reserved leave to the plaintiff to amend her complaint as she might be advised within a time named. Before the expiration of this limit, the plaintiff came into court and asked that the cause be dismissed at her cost, which was accordingly done. This was on the 16th of February, 1885. In August, 1888, the present suit was brought, and the complaint contained all the formal and necessary averments to state a good cause of action on the bond against these defendants. The allegations were apt to show the liability of the obligor and the assignment and transfer of the instrument to the present plaintiff. The defendants answered, set up a tender of the instrument and a refusal to receive it, and likewise pleaded the former recovery in bar of the present action. The plaintiff replied. There were various amendments to the plea of a former recovery and to the replication; but they resulted in presenting very sharply the issue as to the conclusiveness
The only proposition remaining to be examined to sustain the conclusion arrived at by the court respects the contention that the complaint in the original suit brought by Charlotte E. Gallup failed to state a cause of action. Of this there can be no question. In most respects the two complaints are entirely concurrent. The chief difference relates to the averment of title to the bond which is the gravamen of the suit. In the original action, she simply averred that she was the owner of the cause of action which had accrued to Mrs. Von Eichthofen by reason of Kaltenbach’s failure to maintain his replevin suit. But it was nowhere alleged that the bond on which this present suit was instituted had been assigned or transferred to her, so that she was entitled to sue the sureties bound by it. Whether it was or was not true that Charlotte had become so possessed by transfer of a right of action on that judgment that she might sue the original plaintiff in it, need not be determined. At all events, the complaint filed did not state a cause of action on the undertaking executed in the original replevin suit. The present complaint does. This very'substantial and essential difference destroys the force of the plea of a former adjudication and permits the present action to be maintained.
We think there is another equally conclusive reason which operates to destroy the bar. There has been much discussion in the profession as to the circumstances under which a plaintiff may dismiss his suit, and thereby reserve to himself the right to re-commence his action. The present appeal
On either hypothesis, the plea of a former recovery was not sustained by the production of the record in the other suit.
The judgment will be reversed, and the case remanded for further proceedings in conformity with this opinion.
Meversed.