State v. California Packing Corporation , 105 Utah 191 ( 1944 )

I concur in the holding that the dismissal of this action by the trial court was without prejudice, but reach that conclusion on a different basis than does my associate.

The only question presented by plaintiff's petition for rehearing has to do with the form of the order made by this court. After the District Court sustained the demurrer to plaintiff's amended complaint, and plaintiff refused to amend or further plead, the District Court dismissed the action with prejudice. In the opinion rendered by this court on appeal,141 P.2d 386, we held that the demurrer was properly sustained and affirmed the judgment. It is now contended that our order is erroneous in that it affirms a dismissal with prejudice, whereas a dismissal for failure to amend after the sustaining of a so-called general demurrer is a dismissal not on the merits and should therefore not be with prejudice. I state the question: When a demurrer to a complaint is properly sustained because the complaint does not state a cause of action, and plaintiff, after leave given, refuses to amend or plead further, stand upon his pleading and suffers a dismissal, is the judgment of dismissal on the merits.

That a judgment of dismissal upon demurrer is a final judgment is conceded. Is it on the merits? Section 104-29-1, U.C.A. 1943, provides that:

"An action may be dismissed without prejudice, or a judgment of nonsuit entered. * * *"

Then follow five subdivisions or specifications as to when this may be done. Subheads (1) and (4) are upon application of the plaintiff, and (2) is upon the agreement or stipulation of the parties. Subdivisions (3) and (5) are upon motion of defendant and apply when plaintiff fails to appear at the trial, and when upon the trial plaintiff fails to prove a sufficient case. The only other sections of the statute pertinent here are Sec. 104-29-2, reading "In every case, other than those mentioned in the next preceding section, judgment must be rendered on the merits." Section 104-30-1, defining a judgment as a final determination of the rights of the parties in an action or proceeding; and Sec. 104-30-7, reading: "A final judgment dismissing the complaint, either before or after a trial, does not prevent a new action for the same cause of action, unless it expressly declares, or unless it appears by the judgment roll, that the judgment is rendered upon the merits." It is evident that a dismissal does not bar another action unless such judgment of dismissal is one that is rendered upon the merits. It is also evident by the section first above cited that not every dismissal after a demurrer sustained is on the merits.

What is before the court on a general demurrer? What is determined by an order sustaining a general demurrer? Our statute does not mention "general demurrers" nor does it mention "special demurrers." It merely states that a party may demur upon grounds therein specified. Sec. 104-8-1, U.C.A. 1943. The terms general and special demurrer are firmly established in legal parlance and proceedings. They have a generally understood and definite signification and connotation. The term, general demurrer, connotes one which is directed generally at the entire pleading, which searches the pleading as a whole, which is general in its attack, and not directed at special specific defects which can be pointed out as appearing upon the face of the pleading. It is generally directed at matters not in the pleading which it is thought should be set out. It calls attention to the insufficiency of the pleading to serve its purpose. It cannot therefore in form specify the particular wherein the pleading is defective, but does so in general language that "the pleading does not state facts sufficient to constitute a cause of action" (or a defense). Because of the general nature of the assault it has been called a general demurrer. The other six grounds of demurrer set out in the statute, are directed at specific defects, not matters missing from the pleading but appearing upon the face thereof, to which matter the demurrer in form specifically and specially directs the attention of the court. Escalante Co. v. Kent, 79 Utah 26,7 P.2d 276. Hence it is called a special demurrer.

A general demurrer is a general appearance. McMillan v.Forsythe, 47 Utah 571, 154 P. 959. Generally, it does not raise a question of jurisdiction of the court. It concedes the jurisdiction of the court over the subject matter and of the parties. It challenges the right of the court to enter any judgment against demurrant, in favor of the plaintiff, because the facts set up by plaintiff do not show him entitled to relief against demurrant. It is a pleading in response to the prior pleading (complaint, answer, or counterclaim) of the adverse party. Sec. 104-6-3, U.C.A. 1943. It admits the allegations of the pleading to which it is directed and asserts such pleading is insufficient to present to the court any justiciable issue; insufficient to justify the court in judicially determining the merits of the cause of action. It asserts there is no matter juridically presented to the court by the pleading. Since such demurrer admits the allegations of the pleading to which it is directed, it is also in legal effect an answer or reply thereto, in the nature of a general admission. Gammon v. Bunnell, 22 Utah 421, 64 P. 958;Peale v. Clark, 50 Utah 83, 166 P. 981, and so standing leaves no issues on which evidence need be taken. Toone v.J.O. O'Neill Const. Co., 40 Utah 265, 121 P. 10. There being no question in dispute as to the facts, there is but one question before the court: On these facts is the party entitled to relief? This question may be presented for a preliminary ruling, or it may be presented on final submission upon the merits. If presented "upon demurrer" the court's pronouncement thereon is not a judgment but a ruling, holding, or order occurring in the course of the proceeding in the action. If the court sustains a demurrer, the other party is permitted once as of course, and again if allowed by the court, to plead further and bring in other facts to show he is entitled to relief. If the demurrer is overruled, demurrant is allowed by the court to replead and traverse allegations of the complaint, so presenting a justiciable issue of fact or another issue of fact or another issue of law. A repleading, by either plaintiff or defendant, supersedes the former pleading in the making of the issues. Until a new pleading has been filed, the others stand as the pleadings determining the issues or questions between the parties and before the court. Toone v. J.O. O'Neill Const. Co., supra;Chesney v. Chesney, 33 Utah 503, 94 P. 989, 14 Ann. Cas. 835;Tate v. Rose, 35 Utah 229, 99 P. 1003.

What then is the situation if a general demurrer to a complaint has been sustained and plaintiff refuses to amend or plead further?

The case is still pending before the court. Plaintiff has invoked the jurisdiction of the court by filing his complaint. Defendant has appeared and answered by filing a general demurrer which is an admission of the allegations of the complaint. Three parties have connection with the case and may have some interest in seeing action in the matter: Plaintiff, defendant and the court. Plaintiff has two courses open: He may have the case set for trial or he may move a dismissal as provided in Sec. 104-29-1, U.C.A. 1943, Subdivisions (1) and (4). A trial would be on the merits; a dismissal would be without prejudice to another action. Of course, since the court had ruled that the facts would not entitle plaintiff to relief, plaintiff would probably not ask to have the case tried on the merits.

Defendant likewise has two available courses to dispose of the case. He may have the case set for trial and proceed under subdivisions (3) or (5) of Sec. 104-29-1, U.C.A. 1943. He, like the plaintiff, may then move to have the case dismissed or he may submit it on the merits. If plaintiff does not appear at the trial and defendant asks for dismissal under subdivision (3), such dismissal is without prejudice. Whether or not plaintiff appears at the trial, if plaintiff does not ask for a dismissal, defendant may submit the case on the merits, or move for judgment on the pleadings and take a judgment thereon against the plaintiff, no cause of action. Such judgment being a final determination of the rights of the parties in the action is a judgment on the merits and is a bar to another action.

The third party with an interest in seeing something done in a pending action is the court. It is interested in clearing its calendar, preventing accumulation of litigation on its docket, and in seeing its orders are obeyed or fulfilled. When the court has ruled that a complaint does not state a cause of action and allowed plaintiff time to amend, which plaintiff refuses or neglects to do, the court in the interests of clearing its docket and performing its functions, may on its own motion dismiss the action. French v. Central Const. Co., 76 Ohio St. 509,81 N.E. 751, 12 L.R.A., N.S. 669; 17 Am. Jur., p. 85. Such a dismissal is not a final determination between the parties in the action, is not on the merits, and therefore is without prejudice.

It follows that where an action is dismissed, whether on motion of plaintiff, or of defendant, or by the court on its own motion because plaintiff refuses to amend or plead further after the sustaining of a demurrer on the ground that the complaint does not state sufficient facts, such dismissal is not on the merits, and is without prejudice. If either party desires a judgment with prejudice, he must submit the cause for determination on the merits either by evidence or by motion for judgment on the pleadings. For all the record here shows, this action was dismissed by the court on its own motion. It was, therefore, a dismissal without prejudice regardless of the wording of the court's order.

MOFFAT, Justice, participated in the original opinion but died before publication of this opinion.