Chappelle v. City of Concord

THE COURT.

Plaintiff appeals from a judgment entered on the sustaining of demurrers to his complaint and dismissal

[824]

of said complaint on the ground that the issues raised in it had been adjudicated in a prior judgment.

Plaintiff, a minor, through his guardian

ad litem,

had brought an action against the city of Concord (hereinafter called the City) and Tony Freitas, a police officer of the City, for false arrest, false imprisonment, assault and battery allegedly occurred on June 10, 1954. The action against the City was also based on negligence in retaining defendant Freitas in its service as a police officer notwithstanding his reputation for violence. It was further alleged in the first amended complaint in said action that plaintiff served a claim on the city clerk of the City on February 24, 1955, at which time he had first heard of his legal rights against the City from his guardian

ad litem.

Demurrers of both the City and Freitas'were sustained without leave to amend and judgment for defendants was entered accordingly on May 18, 1955. Plaintiff did not appeal from said judgment but on the same date filed a new complaint, which introduced the present action. Its allegations were literally the same as those of the first amended complaint in the prior action, except that an allegation was added to. the effect that immediately after the assault plaintiff’s guardian

ad litem

was informed by the City through its city manager that it was not necessary for her to file a claim on behalf of plaintiff and that the City would take care of everything, that in reliance on said representation, plaintiff failed timely to file a verified claim and that the City therefore is estopped to rely on said failure. The demurrers sustained to said complaint are mentioned in the judgment but their character does not appear from the transcript. However, the judgment for defendants must at any rate be upheld on the basis of res judicata.

Whether and in how far a judgment entered on the sustaining of a demurrer is res judicata depends on the character of the demurrer sustained. To plaintiff’s first amended complaint, the defendants demurred both generally (no cause of action stated) and specially for ambiguity^ uncertainty and unintelligibility, the special demurrers relating to different minor details. The fact that the demurrers to the first amended complaint were sustained without leave to amend shows that it was the general demurrers that were sustained. That such was also the understanding of plaintiff is shown by the fact that in his new complaint he did not try to cure the alleged defects against which the special demurrers were directed. A judgment on a general demurrer will have the effect