Coleman v. Birmingham Fertilizer Co.

• Decision Date: 22 June 1922
• Docket Number: 8 Div. 411.
• Citation: 208 Ala. 160,93 So. 904
• Parties: COLEMAN v. BIRMINGHAM FERTILIZER CO. ET AL.
• Court: Alabama Supreme Court

93 So. 904

208 Ala. 160

COLEMAN v. BIRMINGHAM FERTILIZER CO. ET AL.

8 Div. 411.

Supreme Court of Alabama

June 22, 1922

Rehearing Denied Oct. 12, 1922.

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Bill by W. M. Coleman against the Birmingham Fertilizer Company and J. F. Hooper to set aside a former decree, to enjoin its execution, for an accounting, and redemption. From a decree dissolving injunction, the complainant appeals. Affirmed.

Rayburn Wright & Rayburn, of Guntersville, for appellant.

Street & Bradford, of Guntersville, for appellees.

THOMAS J.

The instant bill was to set aside a decree of the circuit court in equity, and its filing date was October 10, 1921. The bill eventuating in the decree now sought to be set aside was filed by the Birmingham Fertilizer Company against W. M Coleman and others on September 10, 1920, personal service being perfected on the respondent (complainant in the instant bill), and a decree pro confesso was duly entered against him on October 18th thereafter. After submission for final decree, the same was rendered November 3, 1920, ascertaining the amount due on the mortgage debt, and allowing redemption to the complainant (judgment creditor) from the Hooper mortgage. The purpose of the former bill was to enforce the lien of a registered judgment, by complainant in the former bill and respondent here, against the instant complainant which judgment was recovered on January 24, 1918, and perfected as a lien against the land of the judgment debtor subject to a mortgage to one Hooper, or the transferee thereof, and for redemption by the judgment creditor.

The present bill is for injunction and redemption by W. M. Coleman, against the Birmingham Fertilizer Company, judgment creditor, and J. F. Hooper, the mortgagee. No irregularity in said former proceeding nor fraud or imposition on the part of appellee is averred to have intervened or infected that decree. Complainant offers no sufficient excuse why, as respondent in the former suit, he did not or was not permitted to set up and establish his right in the premises to the lands in question, and which he now attempts to assert by this suit. The only grounds set forth in the present bill for disturbing the original decree are that the lands described in the bill are the homestead of complainant, that he was not fully acquainted with his right of homestead or the assertion thereof (Code, § 4174), and that the sum due on the Hooper mortgage is much less than that ascertained by the court to be due on former decree.

The general rule of res judicata is that the rights of the parties to the former suit are affected as to matters actually presented by the pleading and there litigated between the parties, and also all material matters or defenses which might have been litigated in that suit by and between the parties, and not conclusive as to matters incidentally brought into the controversy. Schillinger v. Leary, 201 Ala. 256, 77 So. 846; Terrell v. Nelson, 199 Ala. 436, 74 So. 929; Hall & Farley v. Alabama, etc., Co., 173 Ala. 398, 56 So. 235; Crausby v. Crausby, 164 Ala. 471, 51 So. 529; Thompson v. Johnson, 201 Ala. 315, 78 So. 91; Chamberlain v. Gaillard, 26 Ala. 504.

In Cross v. Bank of Ensley, 205 Ala. 274, 276, 87 So 843, the parties had previously litigated the question of the exercise of the equity of redemption as to certain mortgages executed to one Martin and transferred to the bank, and the validity of these mortgages was attacked, cross-bill filed, and the question of the indebtedness ascertained; and the final decree was in favor of cross-complainants and the foreclosure of the mortgaged premises averred. On appeal to this court, the decree was affirmed. Cross v. Bank of Ensley, 203 Ala. 561, 84 So. 267. The fact that defendant had made no claim of homestead was adverted to on first appeal. A subsequent bill was filed referring to former litigation setting up further matters of equitable cognizance, including the right of homestead exemption in the lands. Discussing the authorities to the effect that the claim of homestead exemption may be interposed at any time before a sale of the property and of the former conflict in authorities, the question was settled in Kennedy v. First National Bank, 107 Ala. 170, 18 So. 396, 36 L. R. A. 308. The court said, after examination of the majority opinion in the Kennedy Case,...