Carroll v. Alabama G.S.R. Co.

• Decision Date: 11 November 1893
• Citation: 60 F. 549
• Parties: CARROLL v. ALABAMA G. S. R. CO. [1]
• Court: U.S. District Court — Northern District of Alabama

60 F. 549

CARROLL v. ALABAMA G. S. R. CO. ^[1]

United States Circuit Court, N.D. Alabama, Southern Division.

November 11, 1893

Brooks & Brooks, F. S. Ferguson, and S.W. John, for plaintiff.

A. G Smith, J. W. Fewell, and Geo. Hoadley, for defendant.

TOULMIN District Judge (after stating the facts as above).

The statute of limitations is no bar to this suit if the plaintiff brings himself within the exception of section 2623 of the Alabama Code, referred to; but, if his case does not come within the operation of that section, it is conceded, as I understand it, that he cannot maintain this action; that the statute of limitations of one year is a bar to it. To determine this question, which is the one raised by the pleadings now presented to the court, we must consider what the object of the legislature was in enacting the statute referred to,--what cases it was intended to apply to. In Roland v. Logan, 18 Ala. 307, the supreme court says:

'If a judgment be rendered against a plaintiff for a defect of form, not touching the merits, he would be without remedy if the statute perfected the bar during the pendency of the first suit. To remedy this defect, the act referred to was passed. It contemplated the bringing of another suit within a year after a judgment in a suit at law for the same cause of action had been rendered against the plaintiff, but not upon its merits.'

It may be that this declaration of the court was unnecessary in the case then before it; that there was nothing in the case then under consideration that called for this expression of OPINION. However this may be, it was an expression of opinion bearing on a statute similar to the one now being considered and it is entitled to great respect. In the case of Napier v. Foster, 80 Ala. 379, Stone, C. J speaking of this statute (section 2623 of the Code), says, in the opinion of the court, that:

'It is only in cases where some error, mistake, or oversight is fatal to the right to maintain the action in the form in which it is first brought that it can ever become necessary to invoke the provisions of the statute; that the statute was intended to relieve parties of the consequences of some error, mistake, or oversight in bringing or prosecuting the first suit.'

It seems to me, then, that the test by which we are to determine the issue now before the court on the pleadings is whether the judgment of reversal was fatal to the plaintiff's right to maintain the action in the form in which it was first brought, or, in short, whether the judgment of reversal rendered necessary the dismissal of the first suit,--the suit in the city court of Birmingham. Now, was the dismissal of that suit rendered necessary by the reversal of the supreme court? It does not appear that it was. It does not appear that the effect of the reversal was to prevent the plaintiff from recovering in that suit. The supreme court held that the plaintiff could not recover in the case made on the record then before it, and that the lower court erred in not so instructing the jury. But it did not follow that on another trial the plaintiff might not be able to make a stronger or better case in the same action. The reversal of the case by the...