Burgess v. American Mortg. Co. of Scotland

• Citation: 24 So. 727,119 Ala. 669
• Parties: BURGESS v. AMERICAN MORTG. CO. OF SCOTLAND, LIMITED.
• Decision Date: 29 October 1898
• Court: Supreme Court of Alabama

24 So. 727

119 Ala. 669

BURGESS v. AMERICAN MORTG. CO. OF SCOTLAND, LIMITED.

Supreme Court of Alabama

October 29, 1898

Appeal from chancery court, Pike county; Jere N. Williams Chancellor.

Bill in equity by S. H. Burgess against the American Mortgage Company of Scotland, Limited, to redeem lands from under a mortgage. From a decretal order holding that the plea of res judicata filed by defendant barred complainant's right to recover complainant appeals. Reversed.

M. N Carlisle, for appellant.

A. C Worthy, for appellee.

HEAD J.

A former bill by the present complainant against the same defendant for the same relief, upon the same allegations as in the present bill, was dismissed, without prejudice, at the cost of the complainant. Subsequently the present bill was filed, and the defendant moved to stay its prosecution until the costs of the former suit should be paid. The chancellor granted this motion, and ordered that unless the costs be paid on or by December 1, 1897 (subsequently extended to December 20, 1897), the cause would stand dismissed. Complainant failed to comply with the order, but, instead thereof, on said December 20, 1897, on his own application, dismissed his bill. Four days later he refiled the same bill, which is the one now before us. On January 21, 1898, the defendant pleaded said dismissal in bar, as being res adjudicata, and the sufficiency of the plea is now the question for decision. The chancellor held it sufficient, and complainant appealed.

At the time of the dismissal which is supposed to have constituted an adjudication of the merits, the cause was not at issue. There was no pleading except the bill, and no decree pro confesso. In no sense was it ready for trial, or set down to be heard. By no known rule of practice could the chancellor have then adjudicated the merits of the complainant's demand for relief (we do not say controversy, for no controversy or issue had been formed, touching the merits) and the case did not come within the operation of rule 28 of chancery practice, whereby the voluntary dismissal of the bill by the complainant, after the cause is set down to be heard, is made the equivalent of a final adjudication of the merits. The effect of that rule itself is that a mere voluntary dismissal by the complainant is not an adjudication of the merits, unless the cause had been set down to be heard, whatever might have been the effect of such a...