89 P. 410 | Ariz. | 1907
— The only question that may be considered by us upon the record as it is before us is whether the court erred in directing a verdict for the defendant, on the ground that the judgments in the action brought by the father of the plaintiff in 1900 bar this action. We do not understand that the defendant in error claimed in the lower court, or that it claims here, that the judgment sustaining the demurrer to the complaint of the father filed April 5, 1900, bars this action, but it did and does insist that the judgment of the court sustaining the demurrer to the original complaint is a complete bar. By reference to the case of Motes v. Gila Valley etc. Ry. Co., 8 Ariz. 50, 68 Pac. 532, it is seen that this court took the view that by the complaint of the father of the plaintiff in error filed March 6, 1900, he sought to recover for his minor child, Presley L. Motes, and that by his amended complaint filed April 5, 1900, there was a departure from the cause of action set up in the complaint of March 6, 1900, in that the father sought to recover damages accruing to him from the loss of the services of the child; that the amended complaint set up a cause of action distinct from that originally asserted, and
In the case of Wilson v. Lowry, 5 Ariz. 335, 52 Pac. 777, this court had before it the question whether a final judgment for the defendant rendered on a demurrer to the complaint can be pleaded in bar of a subsequent action between the same parties, and we said that whether such a judgment may be so pleaded depends, “first, on whether the demurrer went to the merits of the action,” and, “second, whether the cause of action is the same”; and that “if either of these conditions be wanting the judgment on demurrer does not bar another action.” It is undoubtedly true that where the merits of an action are determined, a final judgment on a demurrer will be conclusive as to a future action, but where the demurrer goes to the form of the action, to a defect of pleading, or to the jurisdiction of the court, such judgment is not. a bar, and will not preclude further litigation on the' merits of the controversy in a court of competent jurisdiction upon proper pleadings; and the rule is that where a demurrer goes both to defects of form and also to the merits of a judgment thereon not designating between the two grounds (the record not disclosing otherwise) will be presumed to rest upon the former. Griffin v. Seymour, 15 Iowa, 30, 83 Am. Dec. 396; Chrisman v. Harman, 29 Gratt. (Va.) 494, 26 Am. Rep. 387; Kleinschmidt v. Binzel, 14 Mont. 31, 43 Am. St. Rep. 604, 35 Pac. 460; Bissell v. Spring Valley Township, 124 U. S. 225, 8 Sup. Ct. 495, 31 L. Ed. 411; 23 Cyc. 1154; Van Fleet’s Former Adjudication, 667. In the case at bar three of the four grounds of demurrer went only to defects of form, and from the record it cannot be ascertained upon which of the grounds the court sustained the demurrer, nor was evidence outside the record offered to so show. Therefore it will be presumed that the demurrer was sustained on the technical ground set up by the defendant. We therefore are of the opinion that the court erred in directing a verdict.
The judgment is reversed, and the case remanded for a new trial.
KENT, C. J., and SLOAN and NAYE, JJ., concur. DOAN, J., concurs in result.
