87 Ky. 259 | Ky. Ct. App. | 1888
delivered the opinion oe the court.
The appellee, Charles Donnelly, in 1876, became the surety of the administrator of John Pepper. In 1880 the appellant, William Pepper, as the distributee, brought an action upon the bond. A general demurrer to the petition having been overruled, the appellee relied upon the execution of a new bond in June, 1879, with other surety, as releasing him from all liability. The answer presented nothing else as a defense, and its averments in no way aided the petition. A demurrer to it was also overruled, and a reply then filed, denying that the
An estoppel by a former judgment is based upon public policy. It demands that when a fact has been judicially and finally determined between the same parties', it shall be at rest. Interest reipubticce ut sit finis, litium. It is, however, equally well settled that a former judgment, to be a bar, must have been a decision upon the merits. Thus a judgment for want of jurisdiction, or by reason of a technical defect in the pleadings, or as to parties, or upon any ground not going to the merits, will not prevent a second action. It does not determine the rights of the parties. This is true of a judgment of non-suit. (Hughes v. United States, 4 Wall., 232; Smith v. McNeal, 109 U. S., 426; Kendal v. Talbot, 1 A. K. M., 321; Insurance Company v. Broughton, 109 U. S., 125.) Were it otherwise, one would be deprived of his “day in court,” and justice be defeated; and while rules are necessary to the administration of law, they should not be so technical, or procrustean, as to deform it, and hamper justice by a sort of judicial jugglery.
Where a party relies upon a former judgment as a bar, the burden is upon him to show that the merits of the case were considered. This must appear from the record, or by evidence aliunde, where it is ad
In this instance, it is manifest that the defense presented in the former suit was not a valid one. The execution of the new bond with a covenant of indemnity did not, under the then and now existing law, release Donnelly from liability for any act theretofore done by his principal. Formerly, the county ■court had the power by its order to accept one bond in lieu of another, and thus release the sureties upon the first bond of an administrator in toto. This left the question to the order and action of the'court. It was too varying and uncertain. The law was, therefore, changed, and provides: “If a personal representative shall give a new bond when ruled to do so by the court, on motion of a surety, his former surety shall not be bound for any act of his doue after the •execution.” (General Statutes, chapter 39, article 2, section 13.) In another chapter the statute also provides for the release of the surety from future, and indemnity as to past, liability.
The surety under these statutory provisions cannot be released from responsibility for the acts of the principal done prior to the execution of a new bond. If it contain a clause of indemnity, he may look to it to reimburse himself. In this instance the appellant’s, petition averred the execution of the bond by the appellee as surety. It set forth when the assets were received by the administrator, to-wit: prior to the change of surety; and the only fact presented by way of defense was the execution of the new bond. It was claimed that it operated to release the appellee from all claim by the heir or distributee for the acts of the administrator theretofore done. Under this state of case, to presume that the judgment of dismissal was rendered upon the merits, is to convict the lower court of error. We are unwilling, therefore, to so suppose, if the record authorizes any other conclusion. It is clear that the judgment did not necessarily involve a determination of the merits of the case. The Superior Court, upon appeal, affirmed it, because the petition (as it held) failed to state a cause of action. It would be improper now to-inquire whether it was right or wrong in this opinion. It was final, and must now be regarded as correct. It
In any event, however, where the judgment of the lower court is silent as to the ground upon which it is based, it should be presumed that it was founded upon the reason given for its affirmance upon appeal;
According to the presumption which, under such circumstances, should exist as to the judgment below; according to the opinion also of the appellate tribunal, the appellant has never had a trial upon the merits of his case. If he attempts to look to the. surety in the second bond, he will doubtless respond, that the act of which you complain occurred during the existence of the first one ; and although the bond, to which I am a party, contains a clause of indemnity'to the surety in the former one, yet he has not been damnified, and I am not, therefore, liable. If this be true, it results that, unless the appellant can have a trial upon the merits of his case as to the appellee, he is remediless.
The demurrer to the reply related back to the answer, and raised the question of its sufficiency. Considered in connection with the exhibit of the former suit, it did not present a defense, and the demurrer to the reply should have been sustained to the answer.
Judgment reversed, and cause remanded for further proceedings consistent with this opinion.