Commercial Credit Co., Inc. v. Newman

• Decision Date: 28 October 1940
• Docket Number: 34244
• Court: Mississippi Supreme Court
• Parties: COMMERCIAL CREDIT CO., INC. v. NEWMAN

198 So. 303

189 Miss. 477

COMMERCIAL CREDIT CO., INC. v. NEWMAN

No. 34244

Supreme Court of Mississippi

October 28, 1940

Suggestion Of Error Overruled November 25, 1940.

APPEAL from the circuit court of Amite county, HON. R. E. BENNETT Judge.

Action in replevin by the Commercial Credit Company, Inc., against Ellis Newman for possession of an automobile. From an adverse judgment, the plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Chambers & Trenholm, of Jackson, for appellant.

The court erred in admitting in evidence the record from the county court of Pike County over the objection of appellant.

The court erred in sustaining the plea of res judicata.

While there was a former suit between the same parties, with respect to the same property, it was not upon the same cause of action.

In general it may be said that a plea of res judicata cannot prevail unless there is a concurrence of four elements identity in the thing sued for; identity in the cause of action; identity of persons and of parties to the action; identity of quality in the persons for or against whom the claim is made.

34 C. J. 752, par. 1162; Creegan v. Hyman, 93 Miss. 481, 46 So. 952; Jones v. George, 126 Miss. 576., 89, So. 231; Brown v. Drainage Dist., 185 Miss. 386, 187 So. 529.

Appellant admits that the present suit is the same kind of action as the former, i. e., a suit in replevin; and that it is upon a like cause of action, i. e., its right to possession under a contract with the defendant; but asserts that it is upon a different cause of action, in that the present suit is to determine its right to possession in July, 1939, when it was filed, predicated on the conditions then existing, and not its right to possession in January, 1939, when the suit in Pike County was filed, the conditions then existing, and not those existing in July, 1939; having alone been determinative of its then right.

Appellant may not have had a right to possession of the property in January, 1939, but have had a right to possession thereof in July, 1939. Under the contract exhibited, there must have been a default in payment, or breach of some other condition, to give rise to the right of possession.

Bell v. Smith, 155 Miss. 227, 124 So. 331; Buck v. Payne, 52 Miss. 271.

In the suit in Pike County, appellant failed only because appellee was not in default. In other words, the legal right to possession was not complete in the appellant. Whether or not that right later became complete in the appellant is the question for determination in the suit at bar, not the question as to whether it had the right of possession when it filed the suit in Pike County. The decision in the Pike County case, therefore, could not possibly control the present suit.

Although a judgment in replevin is conclusive on the facts in issue or necessary to sustain the adjudication, and as to any special matter set up to defeat the claim, it is not res judicata as to matters not in issue and determined. Such judgment ordinarily determines nothing more than the right of the successful party to the immediate possession of the property in question, and does not settle anything as to the title or ownership, unless that particular matter is the issue on which the decision actually turns.

34 C. J. 964, par. 1375.

It is true that those things which might have been litigated, as well as those things actually litigated, in the first suit are res judicata; but this means those things 'involved in the record of the former case, and which, being so involved, might have been litigated and decided, ' etc. Hubbard v. Flynt, 58 Miss. 266. And, moreover, when the cause of action in the two suits is different, only those things are concluded by the first judgment which were actually in issue in the suit in which it was rendered.

Scully v. Lowenstein, 56 Miss. 652; 23 Cyc. 1297; 2 Am. & Eng. Encyc. Law (2 Ed.) 784; Hardy v. O.'Pry, 102 Miss. 197, 59, So. 73.

No grounds can be found for sustaining the plea of res judicata here. In the first place, the general rule is that a judgment in replevin determines nothing except the then right of possession. The judgment in the first suit here involved did not turn upon title or ownership, nor upon anything else running on into the future, such as payment in full of the note and contract, that the note and contract were forged, etc. The judgment actually turned upon a default vel non on the part of defendant, appellee here, which default, though not existing when the first suit was filed, could certainly exist when the second was commenced. The "controlling fact" in the first suit was the default in January, 1939. That fact can be neither controlling nor in issue in the present suit. The question of default may again be at issue, but default in July, 1939, not in January. All that was or could have been litigated in the first suit, under the pleadings and instructions, was the question of default in January, 1939. That question cannot affect the present suit. All that the first suit settled conclusively was that appellee was not in default when that suit was filed. That much is final. Nothing more! That being true, then we have no final and conclusive adjudication in the first suit which will operate to determine an issue presented in the second suit.

Young v. Terry, 129 Miss. 281, 92 So. 76; Fair v. Dickerson, 164 Miss. 432, 144 So. 238; Vansant v. Dodds, 164 Miss. 787, 145 So. 613.

Technically, "not guilty" is the only plea in replevin. Apparently, any affirmative defense would have to be set up by notice under that plea. Instead, a plea in bar on the grounds of res judicata was filed, and appellant moved to strike the same as not constituting a defense to the cause of action, an action in replevin. There is no plea of "not guilty" in the present suit, hence the plea in bar cannot be treated as a notice thereunder. It follows, therefore, that there was no proper plea, hence the suit could not be dismissed, but there should have been judgment for the plaintiff by default, with a writ of inquiry, to assess the value of the property.

We respectfully submit, therefore, that the judgment of the lower court should be reversed, and a judgment entered here for the plaintiff, appellant, by default, with an order for a writ of inquiry to assess the value of the property; or, if mistaken in that, then that the judgment of the lower court should be reversed and the cause remanded for trial after the filing of a proper plea.

F. D. Hewitt, of McComb, for appellee.

We submit that the replevin suit in Pike County where final judgment was rendered, and no appeal taken, became final between the parties. According to Section 3097, Code of 1930, a plea of not guilty puts in issue every question that could possibly be litigated in the law suit, and set out in the declaration.

The declaration in the present case is practically the same and almost identical with the declaration filed in the county court of Pike County, when the first suit was filed. The property was located in Pike County undergoing some repairs, although the defendant lived in Amite County. The present suit is brought in the county of the residence of the defendant, appellee, Ellis Newman.

It is the same party, plaintiff, Commercial Credit Company, Inc.; it is the same defendant, Ellis Newman; it is the same 1935 Plymouth Sedan Automobile, and the same written contract and note dated November 1, 1937, signed by Ellis Newman of Peoria, in Amite County, executed to the same party, the Graham Motor Company of Jackson, Mississippi, and alleged practically the same amount, and asked for the same relief and demand, to-wit: judgment against the defendant for immediate possession of said property and all cost of suit, signed by the same parties, in fact it was the same suit, and the circuit judge properly sustained the plea of res judicata and dismissed the suit.

A plea of not guilty is the only plea permitted by the defendant in a replevin suit.

Porter v. Peacock, 129 Miss. 129, 91 So. 856; Munn v. Potter, 111 Miss. 180, 71 So. 315; Hogan et al. v. Commercial Credit Co., 116 So. 298, 150 Miss. 653; Bell v. Smith, 155 Miss. 227, 124 So. 331; Townsend v. Beavers, 188 So. 1; Brown v. Merchants Co., 191 So. 120.

The essentials which must be present in order that a judgment be res judicata of the issue raised in a subsequent suit are identity in things sued for, identity in cause of action, identity of persons in parties to action, and identity of quality in person for or against whom claim is made.

Brown v. Attala Drainage Dist. No. 2, 187 So. 529.

Appellant admits that the parties are the same; the kind of suit is the same; the written contract is the same; the identity of the things sued for is the same; the identity of the cause of action is the same; the persons and parties to the action are the same and the same points and questions already litigated and decided in a final judgment, not appealed from, were involved in the present case.

We respectfully submit that this case should be affirmed.

McGowen, J., Ethridge, J., specially concurring.

OPINION

McGowen, J.

In the Circuit Court of Amite County, appellant, Commercial Credit Company, through an agent, filed statutory affidavit on July 26, 1939, in replevin, alleging that it was entitled to the immediate possession of a Plymouth Sedan automobile, Serial No. 2, 452, 077, Motor No. PZ 89, 353. The writ issued was executed and returned with the forthcoming bond of Ellis Newman, the defendant, named in the affidavit, and filed in that court.

On a subsequent date, October 10, 1939, the appellant filed its declaration in replevin in that court. Attached to the declaration and exhibited therewith was a conditional ...