Crowson v. Cody

Citation110 So. 46,215 Ala. 150
Decision Date08 April 1926
Docket Number3 Div. 730
CourtSupreme Court of Alabama

110 So. 46

215 Ala. 150


3 Div. 730

Supreme Court of Alabama

April 8, 1926

Rehearing Denied Nov. 4, 1926

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill in equity by J.C. Crowson against Michael Cody. From a decree sustaining demurrer to the bill, complainant appeals. Affirmed. [110 So. 47]

W.A. Gunter, of Montgomery, for appellant.

Ball & Ball, of Montgomery, for appellee.


Phases of the controversy arising out of the subject-matter of this suit are Allison v. Cody, 206 Ala. 88, 89 So. 238; same case, 209 Ala. 124, 95 So. 286; Crowson v. Cody, 207 Ala. 476, 93 So. 420; same case, 209 Ala. 674, 96 So. 875, Id., 211 Ala. 559, 100 So. 821. See, also, Hamilton v. Cody, 206 Ala. 102, 89 So. 240.

The recognized distinction between a mortgage and a pledge was made in Crowson v. Cody, 209 Ala. 674, 96 So. 875; same case, 207 Ala. 476, 93 So. 420, and noted in the opinion and the authorities collected in Oden v. Vaughn, 204 Ala. 445, 85 So. 779.

The rules for accounting are considered in Crowson v. Cody, 209 Ala. 674, 677, 96 So. 875; same case, 207 Ala. 476, 93 So. 420; Grand Bay Land Co. v. Simpson, 205 Ala. 347, 87 So. 186; same case, 207 Ala. 303, 92 So. 789; and in Julian v. Woolbert, 202 Ala. 530, 81 So. 32; Hamilton v. Fur. & Loan Co., 206 Ala. 622, 91 So. 489; Tolleson v. Henson, 207 Ala. 529, 93 So. 458; Indian Ref. Co. v. Van Valkenburg, 208 Ala. 62, 93 So. 895; Mabry v. Ray, 208 Ala. 615, 95 So. 6; Henry v. Ide, 209 Ala. 367, 96 So. 698; Erswell v. Ford, 211 Ala. 242, 100 So. 96. And the necessity of averment in a court of equity to open an account stated was adverted in Crowson v. Cody, 209 Ala. 674, 677, 96 So. 875; Scheuer v. Berringer, 102 Ala. 216, 14 So. 640; Kilpatrick v. Henson 81 Ala. 464, 1 So. 188; Paulling v. Creagh, 54 Ala. 646; Langdon v. Roane's Adm'r, 6 Ala. 518, 41 Am.Dec. 60; 1 C.J. p. 716, § 358.

The appeal is from a decree sustaining demurrer to the bill, and there were many grounds assigned. The court below did not designate the grounds of demurrer sustained. Where there are several grounds of demurrer, some of which are sufficient, and the judgment or decree sustaining demurrer is general, the ruling will be referred to a ground that is well taken. Nat. Park Bk. v. L. & N.R.R. Co., 199 Ala. 192, 196, 74 So. 69; Hull v. Wimberly & Thomas Hdw. Co., 178 Ala. 538, 59 So. 568; Tatum v. Tatum, 111 Ala. 209, 20 So. 341; Old Dominion Copper Min. Co. v. Bigelow, 188 Mass. 315, 74 N.E. 653, 108 Am.St.Rep. 479; Hart v. Hart, 39 Miss. 221, 77 Am.Dec. 668; 10 R.C.L. p. 467, § 239; Steiner v. Parker & Co., 108 Ala. 357, 19 So. 386.

In Richard v. Steiner Bros., 152 Ala. 303, 304, 44 So. 562, 563, it is said:

"The rule of practice as declared by our decisions is that, on an appeal from a decree sustaining or overruling a demurrer to a bill in equity, the decree will be referred to the causes of demurrer which will support it, and not to those which would render it erroneous, working a reversal McDonald v. Pearson, 114 Ala. 630, 641, 21 So. 534."

See, also, Kinney v. Reeves, 139 Ala. 386, 36 So. 22; Ferris v. Hoglan, 121 Ala. 240, 25 So. 834; Harper v. Raisin Fert. Co., 158 Ala. 329, 48 So. 589, 132 Am.St.Rep. 32; Sims' Ch.Pr. § 445.

The foregoing rule was followed in Nat. Park Bk. v. L. & N.R.R. Co., 199 Ala. 192, 74 So. 69; B.R.L. & P. Co. v. Barranco, 203 Ala. 639, 84 So. 839; Jones v. Jefferson County, 206 Ala. 13, 89 So. 174; Crowson v. Cody, 209 Ala. 674, 676, 96 So. 875. It need not be observed that the decree on demurrer to a bill will be confined to the grounds assigned. Whiteman v. Taber, 203 Ala. 496, 500, 83 So. 595. In the respects indicated, the foregoing authorities are at variance with the application made of the rule in Graves v. Brittingham, 209 Ala. 147, 95 So. 542, is the opinion of the writer only.

The many questions are presented by the demurrers to the bill as a whole and to each of said portions and phases thereof; among other grounds, that of res judicata, concluding as follows:

"At most the only equity in the bill is for an accounting, but it cannot be maintained so long as it is incumbered by the inapt allegations therein as to other matters and relief, as pointed out in Crowson v. Cody, 209 Ala. 674 [[96 So. 875]."

To the bill as amended respondent refiles each and every ground theretofore filed and assigned "as fully in all respects as if the same were here set out in extenso," and--

"(3) It appears that the matters set forth in said amendment are included in and covered by the matters already litigated in the former case of J.C. Crowson v. Michael Cody et al., referred to in the original bill filed in this case
"(4) The allegations of said amendment are not such as would justify the court in requiring [110 So. 48] any discovery or disclosure on the part of the defendant."

The dismissal of a bill after demurrer sustained and for the failure to amend within the reasonable time given by the court for that purpose performs the effect of a final decree on the merits, and is the foundation for demurrer or a plea of res judicata. Code 1923, vol. 4, p. 916, rule 28; East v. Saks, 214 Ala. 58, 106 So. 185; Boon v. Riley, 171 Ala. 657, 54 So. 997. The effect of this circuit court rule No. 28 has been the subject of consideration. Burgess v. Am.Mortg. Co., 119 Ala. 669, 24 So. 727; Warrior, etc., Co. v. Ala. Land Co., 154 Ala. 135, 45 So. 53; Kelly v. Griffin, 165 Ala. 309, 51 So. 789; Strang v. Moog, 72 Ala. 460; Herstein v. Walker, 90 Ala. 478, 7 So. 821.

In Stein v. McGrath, 128 Ala. 175, 180, 30 So. 792, 794, where the decree dismissed the bill after failure to amend to meet ruling on demurrer, it was declared that, since the demurrer was a confession of the facts averred, and had been directed to the equities of the bill, based on the averred facts, the decree "was tantamount to a decree on the merits upon a final submission."

The rule on sustaining demurrer is understood as not precluding a proper and timely attempt to restate the cause of action. 13 A.L.R. 1104. Such was the treatment of the pleading sought to be defeated by the estoppel set up in Gilmer v. Morris (C.C.) 30 F. 476. However, the rule in this jurisdiction is that, where the pleading was heard on demurrer, and it is ordered that the same be dismissed, unless amended within a given and reasonable time, so as to make the pleading good and sufficient in law, the judgment containing such declaration of insufficiency and allowance of time is not final upon the merits, and the whole pleading is within such time open to due amendment, and a subsequent demurrer challenging that right in the same case will be overruled, if the pleading as a whole sets forth a good cause of action.

The courts differ as to whether the amendment is to be made in the same suit or by new procedure. 13 A.L.R. 1115. The latter course was sanctioned by the District Court in Gilmer v. Morris (C.C.) 30 F. 476, s.c. 46 F. 333. It may not be out of place to say of the procedure in that case that it was where the pledge declared upon was at a different time and of a different nature, alleged to be a different cause of action. 46 F. 333. That suit in the state court by Mr. Gilmer was based on the pledge of 1871, and the bill did not allege recognition of the pledge on the part of Mr. Morris from that time to the filing of the bill in the state court in July, 1884, testimony taken, and decree dismissing the bill affirmed. Gilmer v. Morris, 80 Ala. 78, 60 Am.Rep. 85. The suit in the federal court stated the original transaction of 1871 by way of an inducement, and stated a "new and different pledge in 1875, of the same stock for other debts and for future advancements, which were from time to time to be made," and the estoppel was held not to apply. However this may be, it is not in accord with our procedure, where the sufficiency of the bill is tested by demurrer admitting the material facts, the bill is dimissed after hearing thereon and after reasonable opportunity for amendment is given and declined. Crowson v. Cody, 211 Ala. 559, 100 So. 821; Town of Tallassee v. State, 206 Ala. 169, 171, 89 So. 514, 20 A.L.R. 1127; Terrell v. Nelson, 199 Ala. 436, 74 So. 929; Stein v. McGrath, 128 Ala. 175, 30 So. 792; McClarin v. Anderson, 104 Ala. 201, 16 So. 639; Hanchey v. Coskrey, 81 Ala. 149, 1 So. 259; Perkins v. Moore, 16 Ala. 17. Where the necessary amendments are desired to be made by new pleading, the course has been to dismiss without prejudice the pending suit.

The ascertainment of a final decree (de Graffenried v. Breitling, 192 Ala. 254, 68 So. 265) is but the application of common sense and justice between the parties at interest as relating to the subject-matter of the suit. It follows as requisites of res judicata that the judgment is, by a court of competent jurisdiction, rendered on the merits of the controversy (or what ought to have been litigated between the parties as to that subject-matter) within the issues of the pleadings. This is required that the judgment be final and conclusive of the controversy. It is further true that the judgment must be applied to the status of the parties at the time of the rendition of the former decree sought to be made the basis of res judicata, which status is prima facie presumed to continue until facts are pleaded and proved which have brought about a materially changed condition, or facts presenting a different subject-matter, that did not work a mutual estoppel between the parties, and not binding on them or privies in estate or blood or in law, necessitating another adjudication of the rights of the parties litigant. Clark v. Whitfield, 213 Ala. 441, 105 So. 200, 203.

It should be added that the estoppel must be mutual and equally binding on all persons having an adverse interest. Phillips v. Thompson, 3 Stew. & P. 369; Gwynn v. Hamilton's...

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