Price v. Bonnifield

2 Wyo. 80 | Wyo. | 1879

Peck, J.

Bonnifield sued Price, and one Tyson in November, 1873, in the first district court, upon a judgment alleged in the petition to have been obtained by him in California against them in 1861. It appeared by the petition, that the suit was instituted more than five years after the rendition of the original judgment.

The territorial statute of December 10, 1869, in force at the commencement of the action, at sections 14, 19 and 28, declared that an action upon a judgment should be commenced within five years from the accruing of the cause, allowing a suspension in case of absence,- absconding and concealment. Price demurred to the petition as not setting forth a cause of action, because the cause alleged in it did not accrue within five years next before the commencement of the suit; the district court rendered judgment for the defendant upon the demurrer, Bonnifield appealed, and this court at its March term for 1874, affirmed the judgment. No appeal was taken from that decision. After-wards, in June, 1874, Bonnifield brought a second suit against Price and Tyson in the district court on the original judgment. In addition to the statement of the judgment, alleging only that it was not barred by the statute of limitations of California or Wyoming, because the defendants had not resided in either jurisdiction since its rendition,.Price plead the decision of the court, as á former adjudication, also the bar of the statute. At the trial the former adjudication was proved, and proof adduced as to the other issue, and the district court held against him as to the former, and for him as to the latter defense. Bonnifield appealed, and this court at its March term for 1875, reversed as to the defense of limitation, but affirmed as to that of a former adjudication; after which the case was non-suited below. Afterwards, in July, 1876, Bonnifield brought a third, being the present suit against Price and Tyson in the district court on the original judgment; in addition to the statement of the judgment, alleging only that it was not barred by the statute of limitations of California or Wyoming, because neither of the defendants had been within the state or territory since the rendition of the judgment, Price plead in bar the judgment which had been rendered in the first of these three suits, at the trial, which was without a jury, proved the former judgment, the district court held that it did not constitute a bar, and rendered judgment accordingly for Bonnifield. Price now appeals, presenting to us the question, whether the defense did or did not consti tute a bar.

Tyson was not joined, nor did he appear in either of the three suits brought in the territory. The statute of limitation in force at the commencement of the first suit in the district court, was simply remedial; the decision of this court in it, 1 Wyo., 172, arose from a confusion between remedy and right. The proposition adopted by the court is not supported by principle, nor sanctioned by sound learning; is opposed to the common law, and flatly disobedient to the rule which has uniformly existed in the supreme court of the United States since the organization of that court, and'yet, this court sits as a common law court, and is imperatively bound by the federal jurisprudence. Had Bonnifield appealed from that decision of this court, there cannot be an intelligent doubt that the decision would have been reversed, and his judgment, which, so far as disclosed in his petition, was as vital when declared by this court to be extinct, as it was when rendered in California, protected. He however allowed that decision of this court to become a finality, and we are thus compelled to hold that he is now bound by it as a finality. But we also hold that it is the law of this court only as to the suit in which it was rendered; that it establishes no precedent for general practice ; and that, outside of that suit, the law of this court is the reverse of that which was announced by it in that case upon the demurrer.

The allegations in the second suit as to limitation, were of no matter that entered into the cause of action, set up in the suit; relating to remedy alone, as premature, could not properly have been alleged in the pleadings, unless the bar of limitations were plead, and then, of course, only in reply to the plea. These allegations were, therefore, purely surplusage, which Price could have stricken out on motion; hence the second suit set up the identical cause of action that was set up in the first. The two suits were upon the same thing; the plea of a former adjudication, interposed in the second, was true, and upon a principle which is as well settled, as uniform and as imperative, as a principle of law can be; a principle indispensable to protection against that worst mischief in the administration of the law, — useless and vexatious litigation, (for a party may have his day in court, but only his day,) the plea should have been sustained, and the controversy ended. We hold that the decision of this court in the second suit, on the defense of a former adjudication, was erroneous, is of no authority by the suit, furnishes no precedent for general practice, does not express the law of this court. The non-suit in the second action terminated it, leaving the claim as it was at the commencement of the suit.

The third suit is, as to cause of action and the defense of a former adjudication, simply a repetition of the controversy in the second. The judgment of the district court is reversed, and judgment rendered for Price, the defendant below, upon his defense of a former adjudication, with the costs of the district court, and the costs of the appeal.

Judgment reversed.