Pyle v. Piercy

California Supreme Court Nov 21, 1898 No. S. F. No. 860Published

Before: Garoutte

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Holding. A judgment of dismissal for want of prosecution is not a bar to a subsequent action on the same cause, and the trial court committed prejudicial error by admitting irrelevant and incompetent evidence regarding the defendant's detective and a witness's past conduct.

Issues

Whether a prior judgment of dismissal for want of prosecution constitutes a bar to a subsequent action on the same cause.
Whether a judgment of dismissal for want of prosecution can be pleaded in abatement.
Whether the trial court erred in admitting evidence regarding the character of the defendant's detective and the past conduct of a witness.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“When there has been no adjudication of the cause upon its merits, it will onlj be in exceptional cases that this court will hold that a judgment of dismissal is the equivalent of a judgment of res adjudícala upon the facts.”

“A judgment which has not the elements to constitute a bar has not the elements to support a plea in abatement.”

“The admission of this evidence was clearly erroneous. Its single purpose was to create a prejudice against the defendant, and it was likely to serve that purpose well.”

Synopsis

Judgment of Dismissal—N onappear ance of Plaintiff at Trial—Res Adjudícala.—A judgment of dismissal of an action for want of prosecution for nonappearance of the plaintiff at the time set for trial is not an adjudication of the cause upon its merits, and is not a bar to another action for the same cause.

Id.—Plea in Abatement—Prior Action Pending.—The judgment of dismissal not having the elements to constitute a bar to another action, it has not the elements to support a plea in abatement thereto; and the fact that the time for appeal from the judgment of dismissal had not expired when the second action was commenced is not ground for a plea in abatement of the second action, upon the ground that the prior action was still pending.

Action for Breach of Promise of Marriage—Statute of Limitations. An action for a breach of promise of marriage is not barred by the statute pf limitations upon the ground that promises of marriage had been made more than two years before the commencement of the action, if a new and independent promise of marriage was made within that period, which the defendant refused to perform.

Id.—Evin -nce—Cross-examination op Dependant—Character op Detective Employed.—It is prejudicial error to question the defendant on cross-examination as to the character of a detective employed by him, who was not called as a witness in the case.

Id.—Impeachment op Witness.—A witness cannot be impeached on cross-examination by proof that the witness had been living with her husband before marriage, and cannot be questioned relative thereto on cross-examination, if no testimony was given in chief hearing on that subject.

GAROUTTE, J. Defendant appeals from the judgment and order denying his motion for a new trial.' The action is one for damages based upon a breach of a promise of marriage.

1. Defendant pleaded a judgment in "bar based upon the following facts: Plaintiff filed her complaint, and defendant answered. The time arrived for trial, and the plaintiff’s attorney failed to appear. Thereupon defendant answered ready, and made a motion that the action be dismissed by reason of nonappearance of plaintiff. At this stage of the proceeding, plaintiff’s attorney appeared and declined to further prosecute the action. The court thereupon ordered the action dismissed for want of prosecution, and gave judgment in favor of defendant for his costs. Thereafter a new complaint was filed upon the same cause of action, and defendant, by his answer, pleaded this aforesaid judgment in bar to the prosecution of the present action.

Section 581 of the Code of Civil Procedure declares that an action may be dismissed or a judgment of nonsuit entered in the following cases:

“3. By the court when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal.” The succeeding section declares: “In every ease other than those mentioned in the last section judgment must be rendered on the [385]merits.” In this case it may he fairly said that the plaintiff failed to appear at the time the case was' called for trial, and under the authority of this section the court was justified in dismissing the action. We are not inclined to extend the doctrine of retraxit as recognized in the case of Merritt v. Campbell, 47 Cal. 543, and that case is essentially different in its facts from the case at bar. When there has been no adjudication of the cause upon its merits, it will onlj be in exceptional cases that this court will hold that a judgment of dismissal is the equivalent of a judgment of res adjudícala upon the facts. Upon reason there is nothing to justify such a rule; nothing has been litigated, and no principle of estoppel can be invoked. If plaintiff had proceeded with the trial until nonsuited upon the weakness of her evidence, such judgment of nonsuit would not have been a bar to the commencement of the present action. How much less reason to declare a bar under existing circumstances. We find no direct authorities in this state upon the question, but in the case of Laird v. Morris, 23 Nev. 34, the matter is directly presented under a similar statute, and after careful consideration it was held that such a judgment was not a bar.

Pyle v. Piercy

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