McLaughlin v. Doane , 40 Kan. 392 ( 1888 )

Opinion by

ClogstoN, C.:

This seems to us to be a novel proceeding. If the defendant in error is right in his answer, and the court properly overruled the plaintiffs’ demurrer, and properly sustained the demurrer to the plaintiffs’ reply, then the defendant would be relieved from his liability both as to the judgment, and the note, the subject of the judgment. When the defendant demurred to the plaintiffs’ petition on the judgment, and the court sustained the demurrer upon the ground that the court of Nova Scotia had no jurisdiction to render the judgment, and a judgment was rendered upon that demurrer, we think that judgment was upon the merits, and disposes of the action; and that while that judgment remains unreversed it is complete and final. It/not only precludes ^ the plaintiffs from again bringing an action upon that judgment, but it also bars the defendant from in any manner pleading that judgment as a defense to this action. He cannot consider it binding as against the plaintiffs and not as against himself. He insists, however, that while the court did sustain that demurrer and dispose of that judgment, yet it was possible for the plaintiffs to have so amended their pleadings as to have shown that the judgment was good. We think this claim will not avail the defendant. If he knew the judgment was good, and procured the court to make and render a decision to the contrary, he cannot take advantage of it here. He was willing that the court should find that the judgment was void for want of service, and he cannot now be heard to say that the judgment was good. He cannot be allowed to play fast and loose with the court. The judgment upon the demurrer must be considered as final as though the matter had been submitted to' a court or a jury, and they had made \findings, and judgment had been rendered thereon. (Wells Res Adj., §446; Gould v. E. & C. Rld. Co., 91 U. S. 526; Aurora City v. West, 7 Wall. 82; P. W. & B. Rld. Co. v. Howard, 13 How. 337.)

We therefore recommend that the judgment of the court below be reversed, and the court be directed to overrule the demurrer to the plaintiffs’ reply.

By the Court: It is so ordered.

All the Justices concurring.