Davis v. Morgan

• Decision Date: 27 October 1921
• Docket Number: 8 Div. 375.
• Citation: 206 Ala. 576,91 So. 318
• Parties: DAVIS v. MORGAN.
• Court: Alabama Supreme Court

91 So. 318

206 Ala. 576

DAVIS v. MORGAN.

8 Div. 375.

Supreme Court of Alabama

October 27, 1921

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

Action by J. P. Davis, as administrator of E. G. Williamson, against H. J. Morgan, in detinue, trespass, and trover. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

Street & Bradford, of Guntersville, for appellant.

Orr &amp Killcrease, of Albertville, for appellee.

GARDNER J.

Suit by appellant, as administrator of the estate of E. G Williamson, deceased, to recover of appellee, under count 1 a Wheeland engine, or damages for the conversion or wrongful seizure thereof, claimed in counts 2 and 3. From a judgment for defendant, plaintiff prosecutes this appeal.

Upon the trial of the cause, after issue joined and a statement of the issues to the jury, counsel for plaintiff asked to be allowed to file a special plea of estoppel or res adjudicata to the effect that defendant relied in this suit upon a certain mortgage and bill of sale, upon which he also relied for recovery in certain litigation wherein he was plaintiff, and one Jones was defendant, involving a portion of the property embraced in plaintiff's retention of title notes, which had been sold by plaintiff to said Jones.

Aside from any question as to the exercise of the discretion of the court in permitting the proposed plea to be filed at that time, we are of the opinion the statement of counsel failed to disclose the sufficiency of such plea as one of res adjudicata, as it was not made to appear there was either identity of parties or of subject-matter, or that the judgment rendered was upon the merits. Gilbreath v. Jones, 66 Ala. 129; Perkins v. Moore, 16 Ala. 9; 23 Cyc. pp. 1131, 1164, 1165. There was therefore no error in the refusal to allow such proposed plea to be filed.

The foregoing is equally applicable to those assignments of error based upon the action of the court in sustaining objections to evidence offered as to such former suit, as the above-noted deficiencies as to the plea of res adjudicata were not offered to be supplied by any such proof.

Plaintiff's intestate sold to one Williams certain machinery, the engine here in controversy being a part thereof, and as security took "retention title" notes. The defendant sold Williams a certain tract of land, and there remained due a portion of the purchase price. Williamson purchased the land from Williams and assumed the balance due the defendant Morgan. At the time of the consummation of this trade, all three parties were together with the justice of the peace who prepared the papers. Plaintiff claimed under retention title notes to Williamson, and defendant under a mortgage subsequently executed by Williams to Benefield Bros. and transferred to defendant, and also under bill of sale executed by said Williams.

The court properly instructed the jury that the plaintiff's title was superior to that of defendant, as defendant acquired his title subsequent thereto, and with full knowledge thereof, and that plaintiff should recover unless the jury found from the evidence that the transaction between the parties when plaintiff's intestate bought the land was intended as a satisfaction of the retention title notes or that Williamson had at that time given to Williams full authority to sell...