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McCreary v. Casey

Supreme Court of California
Oct 1, 1872
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
DOCKET NO.

3,427

Attorney(S)

          Kincaid & Bates, for Appellant, argued that the plaintiff was estopped by the judgment rendered in the first suit, since he did not appeal from the order of the Court denying his motion toopen the judgment, and cited Estrada v. Murphy , 19 Cal. 248; Caperton v. Schmidt , 26 Cal. 479; and Marshall v. Shafter , 32 Cal. 197, 198.           Fox, for Respondent, replied that the issues in this case were not tried or determined in the former case, and consequently the judgment was no bar, and cited Burnell v. Knight, 51 Barb. 267; Barnum v. Reynolds , 38 Cal. 643; Rosse v. Rust, 4 Johns. Ch. 300; and Hughes v. Waters , 30 Cal. 309.

ACTS

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         OPINION          By the Court:

         It appearing in the record here to be conceded as a fact that in the action of Casey v. McCreary the equitable defense interposed by the latter was virtually dismissed without being presented to or considered by the Court in rendering the judgment on that case, the judgment so rendered is not a bar to this action; the Court below therefore did not err in granting a new trial, and (without expressing an opinion as to the sufficiency of the complaint--a question which though argued by counsel is not involved in the appeal) the order is affirmed.

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