Opinion
No. 27130.
March 22, 1938.
(Syllabus.)
Judgment — Demurrer to Petition Improperly Sustained on Ground Matters Pleaded Were Res Adjudicata.
Where a petition pleads several causes of action which are not otherwise demurrable, it is error to sustain a demurrer to one of said causes of action on the ground that the matters therein pleaded are res adjudicata between the parties. The defense of res adjudicata must be raised by affirmative plea.
Appeal from District Court, Garvin County; W.G. Long, Judge.
Action by Carl Whitson against the City of Pauls Valley to recover certain moneys alleged to have been illegally exacted. Demurrer was sustained to one of the plaintiff's causes of action on the ground that the matters pleaded were res adjudicata, and plaintiff brings error. Reversed and remanded.
Carl Whitson, for plaintiff in error.
Haskell Paul, for defendants in error.
This is an appeal from an order of the district court of Garvin county which sustained a demurrer to one of the causes of action pleaded in the petition. The parties occupy the same positions before this court as they did in the trial court and will be referred to as plaintiff and defendants.
Plaintiff sought to recover from the defendants certain moneys which he alleged had been exacted of him. The petition of plaintiff contained two causes of action. Under the first he sought to recover certain money which he alleged had been extorted from him by means of certain void ordinances and by arrest and threats of arrest; and, under the second, he sought to recover certain money which he alleges he had paid to the defendants to be held in escrow pending the outcome of certain litigation between the parties. The defendants demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action in favor of plaintiff, and for the further reason that the matters pleaded were barred by the statute of limitations. The trial court overruled the demurrer as to the first cause of action, but sustained it as to the second for the assigned reason that the matters therein pleaded were res adjudicata between the parties. The plaintiff reserved proper exceptions to the ruling of the trial court, gave notice of intention to appeal, and has brought the matter here by case-made which is properly certified as a transcript. The appeal presents one matter for our consideration and that is whether the trial court erred in sustaining the demurrer to the plaintiff's second cause of action. Under this cause of action the plaintiff in error stated facts which were sufficient to constitute a cause of action in his favor and against the defendant sufficient to withstand a general demurrer. The trial court sustained the demurrer on the ground that the matters alleged were res adjudicata. In this respect we are of the opinion that the court erred. Plea of res adjudicata is a matter to be raised by affirmative plea and cannot be presented by a general demurrer. Simpson v. Highfill, 172 Okla. 141, 45 P.2d 115. Both parties to this appeal have requested that we try the case here upon its merits. We cannot entertain such application. The lower court will undoubtedly afford the parties ample opportunity to try the cause upon its merits and to offer such evidence as they may have regarding their claims and defenses. On account of the error heretofore pointed out, the cause is reversed, with directions to set aside the order sustaining the demurrer and to reinstate plaintiff's second cause of action in his petition and to take and allow such other and further proceedings in the matter as right and justice may require not inconsistent with the views herein expressed.
Reversed, with directions.
OSBORN, C. J., and RILEY, PHELPS, CORN, GIBSON, HURST, and DAVISON, JJ., concur. BAYLESS, V. C. J., and WELCH, J., absent.