Colquett v. Williams

• Decision Date: 12 February 1959
• Docket Number: 4 Div. 893
• Citation: 269 Ala. 383,113 So.2d 347
• Parties: J. F. COLQUETT et al. v. Jimmy D. WILLIAMS, pro ami, et al.
• Court: Alabama Supreme Court

Page 347

113 So.2d 347

269 Ala. 383

J. F. COLQUETT et al. v. Jimmy D. WILLIAMS, pro ami, et al.

4 Div. 893.

Supreme Court of Alabama.

Feb. 12, 1959.

Rehearing Denied June 25, 1959.

Robt. B. Albritton, Albritton & Rankin, Andalusia, for appellants.

Frank J. Tipler, Jr., Andalusia, for appellee Williams.

Reid & Enzor, Andalusia, for appellee Hair.

PER CURIAM.

The history of this controversy is set out in the opinion of the Chief Justice which appears below. In our opinion, the facts there recited show that Colquett and Wishum are strangers to the proceeding in which the order or judgment sought to be subjected to examination here was made or rendered. Garrison v. Webb, 107 Ala. 499, 18 So. 297, 299. In the case just cited, it was said:

'* * * We can no more revise or order the vacation of an interlocutory order, in which the parties thereto have acquiesced, by mandamus, at the instance of a stranger to the suit or proceeding, than we could entertain an appeal by him from the final judgment or decree.'

To entitle Colquett and Wishum to the extraordinary writ of mandamus, they must show that they have a clear right to the performance of the act or duty demanded. Moseley v. Collins, 133 Ala. 326, 32 So. 131. In our opinion, they have shown no such right. We do not understand the case of Taylor v. Jones, 202 Ala. 18, 79 So. 356, to so hold.

The foregoing is sufficient to a decision on this appeal, but in view of the statement in the dissenting opinion that 'the judgment rendered on March 29, 1955, was a valid and binding judgment,' we deem it appropriate to express our views as to that judgment.

We think that judgment is void on its face. The case of Tennessee Coal, Iron & R. Co. v. Hayes, 97 Ala. 201, 12 So. 98, 103, cited by the Chief Justice, says of a prochein ami:

'* * * He cannot release the cause of action, nor compromise it, nor submit it to an arbitration, the result of which will bind the infant. And being without power to compromise the cause of action, and the court having the power and being charged with the duty of controlling the suit to the protection of the infant's interest an attempted compromise cannot have force and validity injected into it by his mere consent to a judgment for the amount he has assumed to agree to receive in settlement of the cause of action. His mere consent is nugatory. It is as if it were not, and had never been. * * *'

See Isaacs v. Boyd, 5 Port. 388.

Here was have a complaint which shows on its face that the minor, by next friend, is suing for one-half the damages claimed to have been sustained and a judgment conforming with the complaint. Both the complaint and the judgment show that they are attempts to compromise or release parts of a cause of action possessed by the minor, because the cause of action is split. If a plaintiff sues only for a part, he is precluded from thereafter maintaining another action for the other portion. 1 C.J.S. Actions § 102f, p. 1311. In Steiglider v. Missouri Pac. Ry. Co., 38 Mo.App. 511, it is said:

'* * * The plaintiff must bring his whole complaint into court in one suit at one time,--that the cause of action then existing may be entirely considered and forever settled, that there may be an end to litigation. It is not meant by this rule that the plaintiff must join in one action every demand, which, under the rules of law, he might join, but it is only meant that, where he has but one cause of action, he shall have but the one chance to litigate. He cannot sue for a portion now, and a portion at some other time. He cannot, in an action for a wrong committed by the defendant, sue for, and recover, a portion of the damages resulting therefrom, and, then, at some future time, be permitted to complain of the same wrong, and recover other items of damage existing and known to such plaintiff at the institution of the former action. 'There can be but one recovery for an injury from a single wrong, however numerous the items of damage may be'. Perry v. Dickerson, 85 N.Y. [345,] 347; Union R. R. & T[ransp.] Co. v. Traube, 59 Mo. [355,] 362. As said by the court in Laine v. Francis, 15 Mo.App. 107, 110: 'The general rule, therefore, is that, if a party, having a cause of action which he may litigate and conclude in one suit, divide it, and sue and recover in respect of a part of it, this judgment concludes him as to the whole, and he cannot, therefore, sue as to the remainder.' * * *'

Here, the complaint and the judgment in question clearly show that the minor has lost, from the beginning, the opportunity ever to have his full claim against the defendant Hair adjudicated. This operates to the injury and prejudice of the minor's rights and the judgment is void because the proceeding shows on its face that it is an attempt to compromise or reduce in half the minor's claim against Hair.

The judgment being void on its face, the trial court had the inherent right, at any time, to set the judgment aside on motion. Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116; Robinson Co. v. Beck, 261 Ala. 531, 74 So.2d 915.

Appeal dismissed and petition for mandamus denied.

LAWSON, STAKELY, GOODWYN, MERRILL and COLEMAN, JJ., concur.

SIMPSON, J., desires to limit his concurrence to the proposition that the judgment for $8,100 is void on its face.

LIVINGSTON, Chief Justice (dissenting).

This is an effort by J. F. Colquett and Thomas Wishum to review by appeal, or mandamus in the alternative, a judgment of the Circuit Court of Covington County, rendered on June 5, 1956, which set aside and vacated a former judgment of that court rendered March 29, 1955, on the ground that said former judgment was void. The judgment of March 29, 1955, was a final judgment in a suit for damages for personal injuries filed by Jimmy D. Williams, a minor, suing by his next friend, his father, Jim Paul Williams, against one Herman Hair. Both the minor and the defendant Hair are appellees here.

On the 17th day of September, 1954, the appellee, Jimmy D. Williams, a minor, suing by his father and next friend, Jim Paul Williams, filed his suit in the Circuit Court of Covington County, Alabama, at law, seeking to recover damages from the appellants, J. F. Colquett and Thomas Wishum, and one Herman Hair as joint tortfeasors for certain alleged injuries received by the plaintiff as the proximate result and consequence of the alleged negligence of the defendants in and about the operation of their respective automobiles. That suit was styled 'Jimmy D. Williams, a minor, suing by his father and next friend, Jim Paul Williams, plaintiff, v. Herman Hair, individually and trading and doing business as Star Cleaners, J. F. Colquett and Thomas Wishum, etc., defendants, and Numbered 407,' on the Circuit Court docket.

Thereafter, and within the time allowed by law, the defendants filed responsive pleadings in said cause. Prior to the trial of the case, on the 19th day of March, 1955, appellants propounded interrogatories to the codefendant Herman Hair, and on the 24th day of March, 1955, propounded interrogatories to the plaintiff seeking to elicit information as to a settlement or accord and satisfaction between the plaintiff and codefendant Herman Hair. Shortly prior to the trial of the case, the plaintiff amended his complaint by striking codefendant Herman Hair and amending the complaint so as to state a cause of action against the remaining defendants.

On March 29, 1955, the day following the filing of the amended complaint and prior to the trial of said cause No. 407, the plaintiff filed a separate suit against the defendant Hair alone in the Circuit Court of Covington County, Alabama, and on the same cause of action. On the same day, the defendant Hair filed his answer to said suit, and on the same day the court entered a final judgment against the defendant Hair for the sum of $8,100 damages for the same injuries claimed in said Case No. 407.

On the same day of the rendition of said judgment in Case No. 593, the court overruled these appellants' motion to require answers to the interrogatories heretofore referred to, and thereupon appellants filed their petition in this court praying for the issuance of its alternative writ of mandamus or rule nisi commanding Honorable B. W. Simmons, as Judge of the Circuit Court of Covington County, Alabama, to enter an order requiring the said plaintiff and the said codefendant Herman Hair to answer said interrogatories. The style of said proceeding was 'Ex parte J. F. Colquett and Thomas Wishum, in re J. F. Colquett and Thomas Wishum v. Honorable B. W. Simmons as Judge of the Circuit Court of Covington County, Alabama.' The record of that proceeding in this court is referred to and incorporated herein as a part of the record in this case. On the 31st day of March, 1955, this court granted said petition and issued an alternative writ as prayed for, commanding the said Honorable B. W. Simmons as Judge of that court to forthwith enter an order requiring the plaintiff and the said Herman Hair to answer the separate interrogatories propounded to each of them by J. F. Colquett and Thomas Wishum or to appear and show cause before this Court on Thursday of the next call of the Third Division on the 12th day of May, 1955, at ten o'clock a. m., and show cause why the writ of mandamus should not issue to him as prayed for in said petition. Thereafter, on to wit, April 2, 1955, Honorable B. W. Simmons as Judge of the Circuit Court of Covington County, Alabama, issued an order, pursuant to said writ, commanding the parties to answer such interrogatories and they did answer the same, and, among other things, denied that there was any agreement, understanding or accord, or settlement between the plaintiff on the one hand, the defendant Herman Hair or his attorney of record or his insurance company on the other, involving the full or partial satisfaction of plaintiff's injuries forming the basis of said suit.

Thereafter, said Case No. 407...