The theory of the foregoing decision is this: Kemp and Williams, engaged or about to engage *Page 600 in litigation, involving damages liquidated at $750, placed that sum in a bank, agreeing that it should abide the result of the suit. If Kemp recovered the judgment, the money was to be paid to him. If not, it was to be restored to Williams. Kemp recovered judgment. Williams appealed, gave supersedeas bond, and the judgment was affirmed. By that judgment and its affirmance the condition arose under which Kemp was entitled to the money. In the meantime, through failure of the chosen stakeholder, the money was lost. The loss falls on Kemp because it was his money. That is the result of the contract. The contract amounts to agreement by Kemp that, if he should recover judgment, he would look to the bank for the $750. The deposit amounts to payment by Williams.
Who should bear this loss is not, however, the real question in the case. It is not whether Kemp, for refusing consent to a reasonable proposal for safeguarding the money, should be made to suffer it. It is not whether Williams, for superseding Kemp's judgment, thus preventing him from withdrawing the money while the bank was solvent, should be made to suffer it. One theory is as foreign as the other. Both parties having agreed upon the stakeholder, therewas, perhaps, no obligation on either to consent to vary the contract. Both parties having agreed that the money should abide the suit, there is no reason to complain because the losing party claimed the right to a review in this court before accepting the decision as final.
While the loss of the money gives rise to this suit, it is a fact immaterial to the cause of action. The money may or may not be recoverable from the bank. The court indeed found no competent evidence to prove the loss. In either event Williams should be protected against a demand that he pay it again. His payment was conditional, it is true. But the condition was not the continued solvency of the bank. It was merely the recovery of judgment. The result we reach does not vary the former judgment in the slightest degree. It prevents the use of process to violate a contract, not involved in the former suit, but collatera to it and to the judgment. *Page 601
We have enlarged upon the theory of the decision, since we may thus narrow the discussion on the motion for rehearing.
[9] It is contended that this theory finds no foundation in the complaint or in the evidence. It is true, as originally remarked, that the theory which appellee apparently had in mind in drafting his complaint, and in presenting his case, was that equity should enjoin execution of the judgment, because its collection would subject Williams to a loss for which Kemp was responsible. Appellant contends, perhaps correctly, that such a view presents no question of equitable cognizance, and that it is an attempt to offset a cause of action in tort against a judgment. But we are not concerned with counsel's theory. We inquire only whether facts alleged and proven support the judgment.
The complaint alleges that:
"* * * W.C. Kemp and Fannie Kemp, his wife, recovered judgment * * * against * * * H.C. Williams * * * C.H. Judd and the Estancia Savings Bank, * * * for the sum of $750.00; that pending said suit, the plaintiff, H.C. Williams, left in escrow in said Estancia Savings Bank said sum of $750.00 with the understanding and promise of said bank that said money was to be held subject to the order of the court in said cause."
It is further alleged:
"* * * Said H.C. Williams in good faith left said money with said Farmers' Stockmen's Bank to apply to such judgment that the said W.C. Kemp might obtain against him, and it was mutually understood and agreed between the said Kemp and the said Williams that said money was to be used for no other purpose except to abide the judgment of the court."
The direct testimony on the subject was by Williams. He said that, when he took the option on the land, he placed his personal check with the escrow papers in the bank, and that, when Kemp decided to bring the suit, he came to Williams, and asked him to replace it with a cashier's check, and that they went to the bank and did so. The cashier's check, thus substituted, was made payable to "Ourselves, for W.C. Kemp and H.C. Williams." The stipulation made pending the appeal, and repudiated by Kemp, provided that the deposit be withdrawn from the Farmers' Stockmen's Bank and be placed in the First *Page 602 National Bank of Santa Fe, and that "the same shall there remain pending determination of the above-entitled cause, and if the said appellants fail to reverse the trial of the said cause in the Supreme Court, then the said money shall be promptly paid over to said W.C. Kemp to be applied pro tanto on the judgment which the said W.C. Kemp and wife obtained in said cause."
The foregoing we think sufficiently shows the material fact that the sum was deposited and left to apply on the judgment, if it should be obtained, and to be returned to Williams if Kemp should fail in his suit. To this extent the court's finding is based upon substantial evidence. It is not strictly correct in fixing the time of the agreement, "while cause No. 1047 was pending in the district court." The agreement seems to have been made "when Kemp decided to bring this suit." But it is immaterial whether the deposit was made and the agreement entered into just before or just after the commencement of suit; it having been in contemplation of suit, and relating to and providing for the payment of the judgment which might result. The trial court was also inaccurate in finding that the agreement included removal of the deposit from the Estancia Savings Bank to the Farmers' Stockmen's Bank. The removal seems to have been merely incidental to the merger of the two banks. But this is unimportant. The material fact is that the parties agreed to deposit the money to abide the result.
It follows that, even if the finding had been excepted to and assigned as error, the result would have been the same. It follows also that the complaint is not so fundamentally defective as not to support the judgment.
It is urged that we were wrong in saying that the complaint did not show on its face that there was something due, which it was the duty of appellant to tender as a condition to injunctive relief. It is argued that the court should have taken notice of the interest which would have accrued on a judgment rendered three years previously, and of the costs in the district and Supreme Courts.
[10] If we were to admit that a motion to dissolve a temporary injunction, upon grounds attacking the complaint, *Page 603 is equivalent to a demurrer, we think that a reversal would still not be warranted. We do not think that the question was properly or sufficiently brought to the attention of the trial court.
The grounds of the motion to dissolve were as follows:
"1. That the writ of injunction issued in said cause upon the 6th day of July, 1925, be dissolved, quashed and held for naught for the reason and on the ground that the allegations contained in plaintiff's complaint are insufficient in fact or in law to justify or warrant the granting of the equitable relief prayed for; that it is apparent upon the face of the said complaint that the plaintiffs have a plain, speedy, and adequate remedy at law;
"2. That the said injunction was improvidently granted; the court not having jurisdiction to grant the said injunction, owing to the fact that the complaint fails to set forth facts, in contradistinction to legal conclusions, to justify the court in granting an injunction, and the granting of an injunction in the said cause constitutes an abuse of discretion;
"3. That the said complaint does not even set forth facts sufficient to constitute a cause of action at law;
"4. That the said plaintiffs have not even tendered or offered to pay the amount admittedly due on the said judgment in excess of the alleged deposit of $750.00."
Our Code provides for demurrer for certain defects appearing upon the face of the pleading, among which defects is "that the complaint does not state facts sufficient to constitute a cause of action." Section 4110. "The demurrer shall distinctly specify the grounds of objection to the pleadings; unless it does so, it may be disregarded." Section 4111. If the defect is not apparent upon the face of the complaint, "the objection may be taken by answer," and, "if no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same. * * *" Section 4114.
If we assume the foregoing motion to be equivalent to a demurrer, the question is whether it distinctly specifies the particular ground of objection here urged. Certainly the plaintiff was not admitting that anything was due, nor does it appear upon the face of the complaint that anything was admittedly due. The trial court's attention was not directed to the fact that judgments ordinarily bear interest and may also contain an award of costs. The *Page 604 ground of objection was not distinctly nor specifically pointed out. It lies hidden either in a general or in a misleading paragraph.
Section 4111 is manifestly of some importance in our system of pleading, though we do not find it often referred to in the decisions of this court. In Evants v. Taylor, 18 N.M. 371,137 P. 585, 50 L.R.A. (N.S.) 1113, it is mentioned but not construed. In Locke v. Murdoch, 20 N.M. 522, 151 P. 398, L.R.A. 1917B, 267, the specific objection urged in this court was that the complaint failed to show "in what way and for what reason plaintiff will suffer irreparable injury." The ground of demurrer was (quoting from opinion):
"That the complaint failed to state facts sufficient to constitute a cause of action in that it did not show that the plaintiff was entitled to any equitable relief."
It was found unnecessary in that case to decide "whether the matter contained within the demurrer is too general to raise the question."
In Worthington v. Tipton, 24 N.M. 89, 172 P. 1048, a demurrer on the statutory ground that the complaint did not state facts sufficient to constitute a cause of action, was held sufficient to raise the question of the right to mortgage a homestead after entry and before final proof. There it was said:
"There can be no question but that the demurrer must distinctly specify the ground of objection to the pleadings as is provided by the statute, but that it did so in this case is apparent."
The reason for saying that it did so was that "the several parties, and the court as well, evidently considered this one question raised, as is shown clearly by the memorandum opinion of the trial court and the judgment of that court." That means, not that every omission or defect of pleading is raised by the general objection that the facts alleged do not constitute a cause of action; it means only that the demurrer will be held sufficient where the record shows that parties and court considered the specific question raised, and that it was ruled upon. That is in line with the general rule that defects in pleadings will *Page 605 not be noticed after the parties have actually litigated and invoked and obtained rulings upon the questions involved.
The purpose of section 4111 is to insure against inadvertent errors and the reversal of judgments upon legal questions and theories not fairly presented to and ruled upon by the trial court. We should be assuming a great deal to say that appellant's motion meets this requirement of a good demurrer.
Some of the questions raised in this case are close. We have not readily reached the decision. We are quite satisfied, however, that equity has been done. We are not satisfied that the judgment appealed from is fatally defective, except as pointed out in the original opinion.
The motion for rehearing is therefore overruled, and it is so ordered.
BICKLEY, J., concurs, and PARKER, C.J., dissents.