HomeMy WebLinkAbout0025 which the Third Amended Complaint was dismissed as
to all principals in this action. By thus impairing
the surety for the bond, P1airltiff has released the -
surety from any further liability in this matter. _
Underlying this order is a determination by the trial court
- that appellant's failure to appeal the order dismissing the third
amended complaint with prejudice resulted in that order becoming
an adjudication on the merits as to appellant's claim against
Custom Harvestors. The trial court apparently reasoned that this
inaction by appellant had the effect of prejudicing Aetna's eventual
right to indemnity from Custom Harvestors and therefore, Aetna was
no longer liable since a surety's liability. is measured by that of
the principal and cannot exceed it. The trial court followed the
rule that if the principal is released; even inadvertently, then
the surety is released.
The order from which no appeal was taken is res judicator. as
- to those causes of action contemplated by the third amended com-
plaint. However, the record does not convince us that no cause of
action could be stated in a suit brought by appellant against Cus-
tom Harvestors based upon the existing final judgment in replevin.
Custom Iiarvestcrs was not, as a matter of law, discharged from
- -
liability on that judgment by virtue of the dismissal of the third
amended complaint. Therefore, Aetna's right to indemnity was not
substantially and finally prejudiced.
Although the trial court dismissed five complaints, only one
dismissal was or. the basis that appellant failed to state a cause
of action against Aetna.
The order dismissing the original complaint made no disposition
of the motion to dismiss filed by Aetna. The order dismissing the
~ first amended complaint again did not determine that no cause of
action was stated against Aetna. A second amended complaint was
filed, followed by_defensive motions, whereupon leave was given to
~ -
~ file a third amended complaint to which those responsive motions
were deemed to apply. Thus, there was no determination that the
E ~ second amended complaint failed to state a cause of action against
Aetna.
The third amended complaint was then dismissed for failure
"to state any cause of action against any of the Defendant parties."
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