184 P.2d 297 | Colo. | 1947
THE action is by the same plaintiff, and, with the exception that a certain surety company — only incidentally involved in any event, a defendant there, but not here — against the same defendants as in Heiselt, Inc. v. Brown,
In the present case, defendants answered: (1) That the action was barred by the three-year statute of limitations, S.L. 1939, chapter 125, page 448, section 1 (section 6 [1] chapter 102, 1945 Cum. Supp. '35, C.S.A.); (2) that since in the original case (
The court adjudged: (1) That plaintiff's claim was barred by the statute of limitations interposed by defendants; (2) that the previous judgment pleaded in bar of the action here was effective to that end; (3) that defendants should have judgment on the counterclaim involving the promissory note pleaded by them; (4) that plaintiff's claim stated in its complaint paragraph 17, referred to above, was not a claim recoverable, if at all, in this action.
We shall not pause to examine or determine the issue of the statute of limitations, the first basis of the trial court's judgment, and the determination by the court with relation to paragraph 17 of plaintiff's complaint, is not questioned on error, as already stated. Our discussion, therefore, will be confined to the plea of res judicata, and the counterclaim pertaining to the promissory note mentioned earlier.
[1-3] Res judicata. The record considered, and the demurrers in the former case, going, as appears, "to the merits of the action," being sustained, pursuant whereto judgment of dismissal was entered, we think such judgment "is as conclusive as a judgment entered on a verdict finding the facts." Smith v. Cowell,
[4] The counterclaim. That plaintiff in error executed the promissory note involved, and for value, was not questioned, and that it had been transferred to defendant in error, Brown-Schrepferman Co., for value, was established. Plaintiff sought to ascertain just when the note had been transferred, and for what consideration, but on the ground that immateriality attended, the court would not permit that line of inquiry. We cannot think the court ruled in error. Sykes v. Kruse,
[5] Another contention of plaintiff in error has to do with a bankruptcy proceeding. It appears that L. H. Heiselt (in his private capacity) had personally endorsed the note which he had given in his corporate capacity. Subsequently, as an individual, as it further appears, he was declared to be bankrupt. In that proceeding the original holder of the note caused it to be exhibited and allowed as a claim; but it was not alleged, nor shown, that the bankruptcy estate had assets, or that the holder of the note realized anything whatever as the result of the presentation of the claim there, or could hope to do so. We cannot think that proceeding should be regarded as of dignity requiring either denial or postponement of judgment against the maker of the note, as sought by way of counterclaim in this action.
On the whole case, as we are persuaded, the learned *54 trial judge proceeded in full light, and adjudged with understanding. Let the judgment be affirmed.
MR. CHIEF JUSTICE BURKE and MR. JUSTICE HAYS concur.