Davis v. Evans

• Decision Date: 30 June 1954
• Docket Number: 8 Div. 736
• Citation: 261 Ala. 548,48 A.L.R.2d 740,74 So.2d 705
• Parties: , 48 A.L.R.2d 740 Mildred DAVIS v. Lonnie S. EVANS.
• Court: Alabama Supreme Court

Page 705

74 So.2d 705

261 Ala. 548, 48 A.L.R.2d 740

Mildred DAVIS v. Lonnie S. EVANS.

8 Div. 736.

Supreme Court of Alabama.

June 30, 1954.

Rehearing Denied Oct. 7, 1954.

Maurice F. Bishop, Birmingham, John A. Bostwick, Jr., Guntersville, for appellant.

Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.

MERRILL, Justice.

On February 14, 1952, the appellee (plaintiff below) filed a complaint against appellant (defendant below) in the Circuit Court of Marshall County, seeking damages as a result of an automobile accident. The appellant answered the complaint with pleas of not guilty and contributory negligence. Each party propounded interrogatories to the other and appellant filed pleas of recoupment, one charging simple negligence and the other charging wantonness, based on the same collision, which was the basis of the original complaint. Appellee filed a demurrer to the pleas of recoupment on which, insofar as revealed by the record, there was no ruling by the court.

The cause was set for trial on January 13, 1953, there having been a previous continuance at the request of the plaintiff. When it developed that counsel for plaintiff had notified his client to be present but for reasons unknown he was not available, the lower court entered the following order dismissing the cause as shown by the minute entry:

'On this the 13th day of January, 1953, the plaintiff failing to appear it is therefore, ordered and adjudged by the Court that the case be and the same is hereby dismissed for the want of prosecution and the plaintiff taxed with costs for which execution may issue.'

The appellant then moved orally and in writing for a judgment nil dicit on his pleas of recoupment, to which motion appellee filed written objections. Thereafter on the 3rd of September, 1953, the court overruled appellant's motion, a part of the minute entry being as follows:

'On this the 3rd day of September, 1953, came the parties by and through their respective Attorneys of record and it affirmatively appearing that this suit was dismissed for want of prosecution by this Court on order entered on January 13, 1953 and that on said date a judgment of dismissal of plaintiff's action was entered in said cause and immediately thereafter the defendant moved this Court by oral motion for a judgment in favor of the defendant and against the plaintiff on defendant's pleas of recoupment filed in said cause, and that said oral motion of defendant for a judgment nil dicit on said pleas of recoupment was followed by a written motion of the defendant filed on January 21, 1953, and the plaintiff through his Attorneys having filed a motion to dismiss said oral and written motion of defendant, and both said motions of the plaintiff and the defendant being set on this date by agreement of the parties and the same having been argued and submitted to and being understood by the Court,

'It is, therefore, Considered, Ordered, and Adjudged by the Court that:

'1. The motion of the defendant for a judgment nil dicit against the plaintiff on his pleas of recoupment are not well taken and the same hereby are overruled, to which action of the Court the defendant then and there duly excepted.

'2. That the motion of the plaintiff to dismiss the defendant's pleas of recoupment be and the same hereby is granted and the pleas of recoupment of defendant be and the same hereby are dismissed, along with the plaintiff's suit on the ground and theory that dismissal of the plaintiff's suit takes with it the defendant's pleas of recoupment, to which action of the Court the defendant then and there duly excepted. The costs of said cause by and they are hereby taxed against the plaintiff, for which let execution issue.'

It is from this ruling that the appellant has appealed. The questions before us are (1) Was the above judgment one that would support an appeal? (2) Whether the dismissal of this action by the trial court for failure of plaintiff to appear and prosecute his action takes with it the defendant's pleas of recoupment?

Appellee insists that the appeal must be dismissed on the ground that the judgment of the lower court of January 13, 1953, dismissing plaintiff's case was the final judgment in the cause from which an appeal must be taken within six months and, therefore, the judgment of the court of September 3, 1953, would not support appellant's appeal.

We do not agree. Certainly the judgment of January 13, 1953, was a final judgment as to plaintiff, but the judgment of September 3, 1953, was in the same cause and shows that defendant's motion made on January 13th set up subsequent matters to those dealt with in the judgment of that date and were supplementary thereto, and the order on defendant's motion, dated September 13, 1953, was a final determination of the whole cause, and being final, would support an appeal. Code of 1940, Title 7, § 754. 'This order 'put the case out of court,' and constitutes a final judgment.' Thomas v. White, 244 Ala. 128, 12 So.2d 567, 568.

The second question has not been specifically decided by this court. In the case of Sternberg v. Bonfeld, 1924, 19 Ala.App. 594, 99 So. 659, 660, where defendant filed pleas of set off and recoupment, the case was continued, defendant's demurrer was overruled, the plaintiff's demurrers to defendant's pleas were stricken and the plaintiff failing to plead further and defendant moving for a judgment nil dicit on his pleas and having a judgment rendered by the jury in his favor, the Court of Appeals in affirming the judgment said:

"If there is appearance and a failure to plead a judgment nil dicit must be rendered. Stewart v. Goode, 29 Ala. 476. Or, if defendant appears and subsequently withdraws his appearance, making no further defense a judgment nil dicit is proper. Summerlin v. Dowdle, 24 Ala. 428. So, where there is an appearence, and a motion to quash the summons as irregular, which is overruled and no further defense is made, a judgment nil dicit is proper. Eaton v. Harris, 42 Ala. 491. The appearance of defendant, and the subsequent withdrawal of a plea filed, is properly followed by a judgment nil dicit. Kennedy v. Young, 25 Ala. 563; Grigg v. Gilmer, 54 Ala. 425, 430.' A plaintiff occupies the same relation to a plea of set-off or recoupment as a defendant does to the complaint. The plaintiffs as to these pleas is the defendant and when he appears or is in court, and fails to plead, is subject to the same judgments. He has the right to plead, not being in default but 'nil dicit,' i. e., 'he says nothing,' 'stands mute.' The court must in such cases render judgment. Thereupon a jury was properly called to ascertain from evidence the amount of the recovery to be had. This was done.'

The major distinction between the Sternberg case and the one before us is that there the court permitted the defendant to go forward with his pleas of set off and recoupment, while here the court held that its dismissal of plaintiff's suit for want of prosecution, carried with it defendant's pleas of recoupment.

We must not be unmindful of the policy of the legislature in treating a plea of recoupment as a separate complaint that stands on its own merit, even to the extent that there may be a judgment for the defendant by default. §§ 357-361, Title 7, Code of 1940. Section 358 reads:

'A defendant may plead set-off or recoupment, although he does not confess the plaintiff's claim or demand, and a verdict and judgment may be rendered on his plea of set-off and recoupment, although the plaintiff fail as to his entire claim.'

It is difficult to visualize a situation where 'the plaintiff fail[s] as to his entire claim' more completely than when his suit is dismissed by the court for want of prosecution.

This court considered § 358 in Alabama Power Company v. Kendrick, 1929, 219 Ala. 692, 123 So. 215, 218, and said:

'The clear effect of the statute is to authorize, in the form of plea of recoupment or set-off, a cross-action which stands on its own merit, within the limit of the rules of law governing such plea, that the matter pleaded must arise out of the same transaction as is involved in the plaintiff's complaint, * * *.'

Section 358 was enacted into law by the adoption of the Code of 1923. We think it should be construed together with and in relation to other existing statutes, given a field of operation and reasonable meaning. We think a reasonable interpretation of this section is that the legislature intended to change the common law rule as to set off and recoupment in two respects: First, that defendant did not confess plaintiff's claim by pleading set off and second, that defendant might have judgment on his plea of set off or recoupment even though plaintiff fails entirely as to his claim, irrespective of the cause of such failure. See St. Louis & Tenn. River Packet Co. v. McPeters, 1900, 124 Ala. 451, 27 So. 518 for the common law rule that a plea of set off admits the validity of the contract on which plaintiff sues and that there can be no set off when plaintiff has no cause of action, and Huffstutler v. Louisville Packing Co., 1908, 154 Ala.291, 45 So. 418, 15 L.R.A.,N.S., 340, for the common law rule that plaintiff could at any time dismiss his suit and this carried along with it defendant's plea of set off or recoupment.

It is urged that the common law rule as stated in the Huffstutler case and followed in Pure Milk Co. v. Salter, 1932, 224 Ala. 417, 140 So. 386, should be followed in the instant case. If we apply strictly this rule to § 358, when would that section apply? How long after defendant has filed his plea of recoupment does the plaintiff continue to have full control of the whole suit? At what time does it become impossible for him to have defendant's pleas dismissed, because he deliberately refuses to prosecute his suit? Would it be fair treatment to a defendant with pleas of recoupment filed before the statute of limitations had run to be thrown out of c...