Robinson v. Howard
California Supreme Court
Appeal from the Superior Court of the City of San Francisco. This was an action brought to foreclose a mortgage made by the respondent, C. G. Howard, to secure the performance of a contract made by Howard and his wife, Anna D. Howard. By that contract, in contemplation of a future separation of the wife from the husband, and in consideration thereof, he agreed to pay to her, through Robinson as trustee, $100 per month, as long as she should live separate and apart from him.
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Appeal from the Superior Court of the City of San Francisco. This was an action brought to foreclose a mortgage made by the respondent, C. G. Howard, to secure the performance of a contract made by Howard and his wife, Anna D. Howard. By that contract, in contemplation of a future separation of the wife from the husband, and in consideration thereof, he agreed to pay to her, through Robinson as trustee, $100 per month, as long as she should live separate and apart from him. Robinson first brought an action at law, in the Twelfth District Court, to recover the sum of $300, then alleged to be…
1Opinion of the CourtHeydenfeldt, J.
Murray, C. J. concurred.
There can be no doubt that the first judgment set up in the answer was a bar to this suit. A judgment upon demurrer is not always a bar to a subsequent action, but only when it determines the whole merit of the case.
Here the averment of the answer shows that the demurrer went to the validity of the contract which gave rise to the claim, and this averment is found to be true as alleged, by the Judge at nisi prius, upon inspecting the record of that case.
Judgment affirmed.
2Cited by15 opinions
- Gould v. Evansville & Crawfordsville R. Co.Supreme Court of the United States · 1876
- Keidatz v. AlbanyCalifornia Supreme Court · 1952
- People ex rel. Chilcoat v. HarrisonIllinois Supreme Court · 1912
- Frye v. MileyWest Virginia Supreme Court · 1903
- Wiese v. San Francisco Musical SocietyCalifornia Supreme Court · 1890
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