JULIUS WETZLER, EVELYN S. WETZLER, His wife, SIDNEY WETZLER, J. W. MOW and NELLIE K. MOW, His Wife, Appellants,
LILLIAN S. HOWELL, as Administratrix of the Estate of E. P. HOWELL, Deceased, and LILLIAN S. HOWELL, Appellees
APPEAL from an order and judgment of the Superior Court of the County of Apache. M. T. Phelps, Judge. Affirmed.
Mr. Sidney Sapp, Messrs. Struckmeyer & Jennings, and Mr. T. E. Scarborough, for Appellants.
Mr. W. E. Ferguson, for Appellees.
[37 Ariz. 382] PRESCOTT, Superior Judge.
This is an appeal from an order sustaining plaintiff's plea in bar to the cross-complaint of Julius Wetzler, and from a judgment to quiet title in plaintiffs and against the defendants to certain lands in Apache county, Arizona.
The complaint sets out two causes of action, one in ejectment and the other to quiet title; noth actions involve the same property; the action in ejectment was dismissed before trial, the plaintiffs elected to go to trial upon their action to quiet title, alleging that they were the owners in fee of the lands in question; that the defendants claim title as mortgagees under an equitable mortgage which previously had been foreclosed in an action brought in the superior court of Apache county, wherein the defendant and cross-complainant herein, Julius Wetzler, was plaintiff, and the plaintiffs herein were defendants, being known as cause No. 540 of the records of that court; that the sheriff sold all the property under the mortgage and judgment or decree of foreclosure, and Julius Wetzler was the purchaser thereof; that the defendants, Sidney Wetzler and Evelyn S. Wetzler, J. W. Mow and Nellie K. Mow, his wife, were privy in title and claiming under Julius Wetzler; that subsequent thereto this court reversed the judgment in cause No. 540, and remanded the case to the trial court for further proceedings and a new trial, and thereafter, the cause coming on regularly for trial, Julius Wetzler as plaintiff voluntarily dismissed his suit to foreclose this mortgage without reserving any provision in such dismissal that the same was without prejudice.
[37 Ariz. 383] To which the defendants filed an amended answer, alleging that they were the owners in fee simple of the lands under and by virtue of the judgment of foreclosure and sheriff's sale aforesaid, and that the lands involved in this action had been deeded by Julius Wetzler to Sidney Wetzler and J. W. Mow, and that they, Sidney Wetzler and J. W. Mow, were the owners of same in fee simple. Julius Wetzler as cross-complainant also filed his cross-complaint, seeking to foreclose, as mortgagee, the same equitable mortgage against the plaintiffs as cross-defendants and mortgagors on the lands described in plaintiffs' complaint to quiet title, as also on the cattle covered by the mortgage, being same mortgage he had previously foreclosed in cause No. 540 and thereafter voluntarily dismissed his complaint in foreclosure.
The this cross-complaint, plaintiffs filed a plea in bar and answer, the plea in bar alleging that the equitable mortgage sought to be foreclosed by cross-complainant, Julius Wetzler, in the present action, was the same equitable mortgage sought to be foreclosed in said cause No. 540, wherein a decree of foreclosure was formerly entered in December, 1924, and after appeal to this court was reversed and remanded for a new trial; that thereafter the plaintiff in that action, Julius Wetzler, defendant and cross-complainant in this action, made and caused to be entered by the court a judgment of dismissal of said cause without reserving the right to maintain a further action for the foreclosure of the equitable mortgage; that he did not, by said judgment of dismissal voluntarily entered by him, cause the record to show that the said dismissal was without prejudice; that, under said former action No. 540 and the judgment thereon, J. W. Wetzler wrongfully caused cattle belonging to the cross-defendants of the value of $100,000 to be sold, and has never offered to returned any of the property so wrongfully sold by him nor to [37 Ariz. 384] account to cross-defendants for the proceeds thereof, and has wrongfully obtained possession of the property; that Julius Wetzler dissipated, destroyed and disposed of all of the assets of the cross-defendants under the equitable mortgage, and, by reason of his negligence, carelessness and neglect, many of the cattle died and were totally lost to cross-defendants; that he sold the land described in plaintiffs' complaint, to quiet title, to one Jacob Lowenstein, or directed a deed to be issued by the Santa Fe Pacific Railway Company from whom it was being purchased on conditional sales contract to Lowenstein; that said conveyance was made to secure Lowenstein for money loaned Julius Wetzler; that thereafter, and subsequent to the decision of this court remanding the action for further proceedings and new trial, as aforesaid, in cause No. 540 (No. 2490 of this court and reported in 32 Ariz. 130, 256 P. 365), Julius Wetzler caused the land to be conveyed from Lowenstein to Sidney Wetzler, his son, defendant herein; that said conveyance was fraudulent and made to defeat the rights of the cross-defendants; that, since the said attempted conveyances, Julius Wetzler has managed and controlled the real estate as his own; that the contract forming a part of the equitable mortgage, together with the deed attached and assignment of contract from cross-defendants to Julius Wetzler to the so called Santa Fe lands, were all recorded prior to the deed from the Santa Fe Railway Company to Lowenstein, or from Lowenstein to Sidney Wetzler; and praying that the cross-complainant, Julius Wetzler, and the other claiming by or though him, he forever barred.
No reply or other pleading was filed by cross-complainant or any of the defendants to this plea in bar.
It is from the order of the trial court sustaining cross-defendants' plea in bar to the
cross-complaint [37 Ariz. 385] of Julius Wetzler seeking to foreclose the same equitable mortgage which this court remanded for further proceedings and a new trial to the superior court of Apache county, and afterwards, upon coming on for trial, the plaintiff, Julius Wetzler, defendant and cross-complainant herein, by his counsel, voluntarily dismissed in open court, that the defendants and cross-complainant appeal.
Defendants and cross-complainant have assigned as error that the trial court erred in sustaining appellees' (plaintiffs') plea in bar to appellant's (Julius Wetzler's) cross-complaint without first receiving evidence in support of the plea in bar; in holding that appellant's failure to reserve the right to further prosecute his case was a bar to the cross-complaint in this action; in holding that a voluntary dismissal of appellant's action without a trial upon the merits was a bar to further maintenance of any action for the same cause; in awarding judgment against appellants, quieting title to the lands described in appellees' complaint, and in awarding judgment against appellants, quieting title to the lands in appellees' complaint described, to determining the equities between appellees and appellants; and state in their brief that "the primary and controlling question presented upon this appeal is whether or not a voluntary dismissal of an action, without a trial upon the merits, is a bar to the maintenance of another action for the same cause," citing Corpus Juris, paragraph 1204, page 786, and cases thereunder, to the effect that: "A voluntary discontinuance of a cause by plaintiff, or a dismissal of the action on his motion, does not as a rule amount to a judgment on the merits and therefore will not bar a new action on the same subject matter," and assert the rule as to whether a judgment is res adjudicata or not is, as stated in United States v. California Bridge & Construction Co.,245 U.S. 337, 62 L.Ed. 332, 38 S.Ct. 91, [37 Ariz. 386] quoted with approval by this court in Navajo-Apache Bank etc. Co. v. Desmont,19 Ariz. 335, 170 P. 798, 799: "The doctrine of estoppel by judgment, or res judicata, as a practical matter proceeds upon the principle that one person shall not a second time litigate, with the same person or with another, so identified in interest with such person that he represents the same legal right, precisely the same question, particular controversy, or issue, which has been necessarily tried and finally ...