Opinion
No. 35160.
December 7, 1942.
JUDGMENT.
In action to recover balance due on automobile purchase money reserve title contract and to replevy the automobile, judgment sustaining demurrer to complaint on ground that amount sued for was above jurisdiction of county court and that plaintiff failed to demand possession of automobile before bringing action was not "res judicata" and did not preclude maintenance of second action for an amount within jurisdiction of county court (Code 1930, sec. 693).
APPEAL from the circuit court of Coahoma county, HON. JOHN W. CRISLER, Judge.
J.W. Kellum, of Tutwiler, for appellant.
Order of court sustaining demurrer is a final judgment.
Jacobs v. New York Life Ins. Co., 71 Miss. 656, 15 So. 639.
A demurrer which challenges the jurisdiction of the court is a general demurrer.
Griffith's Mississippi Chancery Practice, Sec. 292.
Special demurrers, in courts of law, have been abolished and all demurrers in law courts are treated as general demurrers.
Miss. Code of 1930, Sec. 553.
A demurrer must be either overruled or sustained, and when so done it will be as an entirety, and when a general demurrer is sustained the judgment is res judicata and bars a new action.
Neill v. Wells, 164 Miss. 372, 145 So. 341.
For a plea of res judicata to prevail a concurrence of the following four elements must exist in both causes, to-wit: identity in the thing sued for; identity in the cause of action; identity of persons and of parties to the action; and identity of quality in the persons for or against whom the claim is made.
Creegan v. Hyman, 93 Miss. 481, 46 So. 952; Jones v. George, 126 Miss. 576, 89 So. 231; Brown v. Attala Drainage Dist. No. 2, 185 Miss. 386, 187 So. 529.
A judgment of a court in a matter within its jurisdiction, however erroneous, is final and conclusive if not appealed from.
Straw v. Illinois Cent. R. Co., 73 Miss. 446, 18 So. 847; Fisher v. Browning, 107 Miss. 729, 66 So. 132.
Brewer Sisson, of Clarksdale, for appellee.
The fallacy of appellant's argument as to the plea of res adjudicata is that he fails to distinguish between a judgment sustaining a general demurrer going to the merits, and a judgment sustaining a special demurrer going to a procedural matter. A demurrer going to the merits and not appealed from is final and res adjudicata, whereas a judgment sustaining a special demurrer going merely to procedure is not final, and is no bar to a new action or suit.
Neill v. Wells, 164 Miss. 372, 145 So. 341; Alabama V.R. Co. v. McCerran, 75 Miss. 687, 23 So. 423.
The McCerran case, supra, appears directly in point. The so-called special demurrer did not go to the merits of the case and the order of the court thereon was nothing more than a dismissal without prejudice. The order sustaining the special demurrer "neither touched nor was intended to touch the merits of the controversy sought to be presented by the insufficient pleading."
All of the cases relied upon by appellant are those where the demurrer goes to the merits and is sustained and not appealed from, or if appealed from is affirmed. The court in Straw v. Railroad Co., 73 Miss. 446, at page 449, 18 So. 847 (which case is relied on by appellant) uses this language: "a judgment or demurrer going to the merits of the action. . . ."
In the case at bar the pleading of appellant, although called a special demurrer, is in reality, and in fact was treated by the court below as, nothing more than a motion to dismiss for lack of jurisdiction.
Appellee Dotson brought this action in the County Court of Coahoma County against appellant Grant to enforce an automobile purchase money reserve title contract. The purpose of this suit was to recover the balance of the purchase money due on the automobile and to that end replevy the automobile in order to sell it and apply the proceeds to the payment of such balance. In his declaration appellant sought to recover more than the sum of $1,000. Section 693, Code of 1930, provides among other things, that the county courts "shall have jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity wherein the amount of value of the thing in controversy shall not exceed, exclusive of costs and interest, the sum of one thousand dollars." To the declaration appellee filed the following demurrer:
"Comes defendant, by his attorney, in the above entitled and numbered cause and demurs specially to the declaration filed against him for the following causes of demurrer, to-wit:
"1. The original affidavit filed in this cause is insufficient in that it fails to allege therein the value of the property involved in this replevin suit.
"2. The declaration fails to show that the plaintiff has made demand on the defendant for the possession of the property involved therein.
"3. The cause of action is founded on the exhibit `A' attached to the declaration and said exhibit `A' shows on its face that the amount involved in this cause exceeds the jurisdiction of this court."
The demurrer was sustained by the court and appellee denied leave to amend his declaration. Thereupon the appellee filed another declaration in the same court on the same cause of action, except in his declaration the amount sued for was less than $1,000.
To the second declaration appellant plead res adjudicata based on the theory that the judgment in the first action, from which no appeal was taken, determined the merits of the cause. To sustain that position Straw v. Illinois Cent. Railroad Co., 73 Miss. 446, 18 So. 847, and other cases along the same line, are relied on. They are not in point because in those cases the demurrers went to their merits and were not confined to matters of procedure, as in the present case. Here the grounds of demurrer were confined to mere matters of jurisdictional amount and procedure; the grounds were that the amount sued for was above the jurisdiction of the county court and that appellant failed to demand possession of the automobile before bringing suit. The action of the trial court is sustained by Neill v. Wells, 164 Miss. 372, 145 So. 341; Alabama V. Railway Co. v. McCerran, 75 Miss. 687, 23 So. 423, 876.
Affirmed.