STATE OF ARIZONA and PIMA COUNTY, Appellants, V. S. GRIFFITH and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Corporation, Appellees
APPEAL from a judgment of the Superior Court of the County of Pima. C. C. Faires, Judge. Judgment affirmed.
Mr. J. Mercer Johnson, County Attorney, and Messrs. Houston & Dodd, for Appellants.
Mr. O. T. Richey, for Appellee Griffith.
Messrs. Bilby & Shoenhair and Mr. Harold C. Warnock, for Appellee Fidelity and Deposit Company of Maryland.
Mr. Floyd M. Stahl, for Maryland Casualty Company.
[54 Ariz. 437] LOCKWOOD, J.
This is an action by the State of Arizona and Pima County, hereinafter called plaintiffs, against V. S. Griffith as the former assessor of Pima County, and his official bondsman, Fidelity and Deposit Company of Maryland, a corporation, hereinafter called defendants, to recover certain moneys which were received by defendant Griffith during his term as county assessor and never accounted for. Three other cases of a similar nature were filed, the only difference being as to the periods of time covered thereby and the name of the bondsman. All of these cases were consolidated for trial, and since the legal issues involved and the judgment are the same in all cases, it was stipulated that the decision by this court in the present case shall be applicable to the other three.
After several dilatory motions were made, defendants answered, setting up several defenses. The first denied any defalcation; the second set up the statute of limitations, and the third raised the issue of res judicata as a result of the decision of this court in [54 Ariz. 438] the case of Griffith et al v. State, 41 Ariz. 517, 20 P.2d 289, 293. The court sustained the plea of res judicata, whereupon plaintiffs appealed.
There are a number of assignments of error, but we think we need consider only the one which raises the question of res judicata. It is the contention of defendants that this plea is sustained by the judgment of this court in the case of
Griffith v. State, supra. The record in regard thereto shows the following facts: On June 15, 1929, there was filed in the superior court of Pima County by the State of Arizona, acting for itself and on behalf of Pima County, and against the defendants herein, a case involving the identical factual situation that is involved in the present case. Defendants answered therein, setting up the one-year statute of limitations as a bar to the action. When the case came on for trial that defense was overruled and judgment eventually rendered for plaintiff. An appeal was thereupon taken to this court, and, among other matters, it was assigned as error that the trial court erred in overruling the defense that the action was barred by the one-year statute of limitations, which includes, among other things, "an action upon a liability created by statute, other than a penalty or forfeiture". Paragraph 709, subdiv. 3, Rev. Stats. Ariz. 1913 (Civ. Code). Upon an examination of the record, we held that the action was based upon a liability created by statute, and that since the complaint showed the money which it was alleged had been converted by defendant Griffith was taken more than one year before the action was brought, the statute had run, unless there was an exception taking it out of the rule. We further held that since the complaint alleged that the money was converted fraudulently, and as a breach of trust, that the statute did not begin to run until the discovery by the plaintiff of the facts which gave a [54 Ariz. 439] right of action. After this, we continued in the opinion as follows:
"... We hold, therefore, that the state of Arizona had the right to maintain its action, and that, if it appears from the pleadings and evidence that the alleged fraudulent conversion was not discovered until less than a year before the commencement of the present action, the plea of statute of limitations would not be available. When, however, defendant did plead the statute of limitations in bar of the action, if plaintiff wished to take advantage of the rule it should have replied to the plea in bar by alleging that, notwithstanding the defalcation complained of occurred more than one year before the filing of the action, it had not been discovered by plaintiff until less than a year before the action was begun, and the reply would have been good as against a demurrer. In the absence of such a reply, the court should have sustained the plea in bar of the one-year statute of limitations. For this reason it is necessary that the case be remanded, and, if plaintiff desires to reply as we have indicated, the issues should be retried on the principles we have set forth in this opinion."
and the case was remanded with instructions to grant a new trial in accordance with the rule laid down above. The mandate of the court was in the following language:
"It is ordered by this court that the judgment of said Superior Court in this cause of July 25, 1931, be and the same is hereby reversed, and the cause remanded for a new trial, appellee, (State of Arizona, acting for itself and on behalf of Pima County, Arizona) to have thirty days from the receipt of the mandate in the lower court in which to amend its complaint to conform with this opinion (dated March 21, 1933); and if appellee fails to make such ...