VIC S. GRIFFITH and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Corporation, Appellants,
STATE OF ARIZONA, Acting for Itself and on Behalf of Pima County, Arizona, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. Dave W. Ling, Judge. Judgment reversed and case remanded.
Messrs. Richey & Richey, Messrs. Alexander, Silverthorne & Van Spanckeren, Mr. Robert McMurchie and Mr. W. L. Barnum, for Appellants.
Mr. Arthur T. LaPrade, Attorney General, Mr. Clarence E. Houston and Mr. Wm. G. Hall, for Appellee.
[41 Ariz. 518] LOCKWOOD, J.
This is an action by the state of Arizona, acting for itself and on behalf of Pima county, against Vic S. Griffith and Fidelity and Deposit Company of Maryland, a corporation, as defendants. There were three other suits of the same general nature filed by the state at the same time which have also been appealed, and it is agreed by the parties that the legal points involved in each of these appeals are identical, and that the judgment in the present case shall control that in the other three referred to.
[41 Ariz. 519] We state the facts necessary for a determination of the issues as follows: Defendant Griffith during the years 1921 to 1928, inclusive, was the county assessor of Pima county, one John Pfeiffer being his deputy, while the corporations involved in all the actions were the sureties on Griffith's official bonds. On the 4th of August, 1928, Pima county brought a suit in the superior court, being cause No. 11471, against Griffith, Pfeiffer, Maryland
Casualty Company of Baltimore, and the Fidelity and Deposit Company of Maryland, to recover from Griffith and Pfeiffer some $36,000 of money belonging to Pima county, which it was alleged they had received in their official capacities and fraudulently converted to their own use, and from the Maryland Casualty Company some $11,000 and the Fidelity and Deposit Company $5,000, on the penalties of their respective bonds. To this complaint the defendants demurred on four grounds: First, that there was a misjoinder of the parties, second, a misjoinder of causes of action, third, that the complaint failed to state a cause of action, and, fourth, that it showed affirmatively on its face that it was barred by the statute of limitations. On the twenty-seventh day of April, 1929, the court entered an order sustaining the demurrers generally without indicating any particular one, and granted plaintiff thirty days within which to amend its complaint, and, the plaintiff having failed to amend, the following judgment was entered on July 2d:
"An order having been entered in this action on the 27th day of April, 1929, sustaining the demurrers of the defendants in said above entitled action to plaintiff's complaint herein and giving the plaintiff leave to amend its complaint within thirty days, and the plaintiff having failed within said thirty days, or at all, to amend its said complaint, and more than thirty days having elapsed since said order was entered, and plaintiff having failed to amend its complaint [41 Ariz. 520] as by said order allowed, now on motion of counsel for the defendants,
"It is ordered and adjudged that the complaint herein of the plaintiff be and the same is hereby dismissed and that the defendants have and recover their costs herein incurred against the plaintiff taxed at $ ."
A short time thereafter this action was brought by the state. The defendants demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action, and then set up three defenses in bar of the action: First, a general denial, second, that the action was barred by the judgment of dismissal above set forth, and, third, that the money involved, if any was converted, was the property of Pima county, and that the action was barred by the statute of limitations. Demands for a bill of particulars were made, and in response thereto it was furnished. The general demurrer was overruled, and the case proceeded to trial before the court sitting without a jury, evidence being introduced on behalf of plaintiff and defendant. The court made findings of fact and conclusions of law, but failed to make any findings on the pleas of res judicata and statute of limitations raised by the answer, and defendants thereafter requested additional findings on those points, which were refused by the court. Judgment was later rendered in favor of plaintiff, and, after the usual motions for new trial had been overruled this appeal was taken.
There are some eight assignments of error, one containing many subdivisions, but we shall consider them in accordance with the legal propositions raised thereby. The first is that the present action was barred by the judgment rendered in cause No. 11471 above referred to. It is a generally accepted doctrine that, if a demurrer which goes to the merits of a case be sustained, and the action be then dismissed by the court, it is a bar to a subsequent similar action between [41 Ariz. 521] the same parties. Wilson v. Lowry, 5 Ariz. 335, 52 P. 777; 34 C.J. 798, and note. There is, however, an exception to this rule. If the demurrer goes to the form of the action, to a defect of pleading, or to the jurisdiction of the court, a judgment of dismissal thereon will not preclude further litigation on the merits of the controversy in a proper case. Bissell v. Spring Valley Township, 124 U.S. 225, 8 S.Ct. 495, 31 L.Ed. 411; Hughes v. United States, 4 Wall. (71 U.S. 236, 18 L.Ed. 303; Motes v. Gila Valley etc. Ry. Co., 11 Ariz. 39, 89 P. 410.
It has also been held that, where a demurrer goes both to defenses of form and to the merits, an order sustaining the demurrer generally and a judgment thereon which does not designate between the two grounds will be presumed to rest on that of form rather than the merits. Bissell v. Spring Valley Township, supra; Motes v. Gila Valley etc. Ry. Co., supra; Chrisman's Admx. v. Harman, 29 Gratt. (Va.) 494, 26 Am. Rep. 387; Griffin v. Seymour, 15 Iowa 30, 83 Am. Dec. 396.
Defendants apparently rely chiefly upon the case of Coates v. Santa Fe, P. & P.R.R., 15 Ariz. 25, 135 P. 717. In that case plaintiff filed a complaint alleging that he had received certain personal injuries while in the employ of defendant and sought damages therefor. Defendant pleaded in bar that plaintiff had for a good and valuable consideration acknowledged full satisfaction of the cause of action, and, the attorney for plaintiff confessing the truth of the plea in bar, the court ordered that the cause be dismissed with prejudice. Notwithstanding this, plaintiff later commenced another cause of action based on the same facts, to which defendant pleaded the judgment of dismissal in the former action in bar. In discussing the question we said:
"A decree of dismissal, 'unless made because of some defect in the pleadings, or for want of jurisdiction, [41 Ariz. 522] or because the complainant has an adequate remedy at law, or upon some other ground which does not go to the merits, is a final determination. Where words of qualification, such as "without prejudice," or other ...