Dawson v. Haygood

• Citation: 180 So. 705,235 Ala. 648
• Decision Date: 21 April 1938
• Docket Number: 8 Div. 795.
• Parties: DAWSON v. HAYGOOD.
• Court: Supreme Court of Alabama

180 So. 705

235 Ala. 648

DAWSON v. HAYGOOD.

8 Div. 795.

Supreme Court of Alabama

April 21, 1938

Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.

Bill in the nature of a bill of review by J. R. Dawson against L. L Haygood, to vacate judgments at law, and cross-bill by respondent. From a decree dismissing the bill, complainant appeals.

Reversed and remanded.

R. L Polk, of Sheffield, for appellant.

J. E Delony, Jr., of Tuscumbia, for appellee.

THOMAS Justice.

The action was in the nature of a bill of review to vacate judgments rendered in the law side of the circuit court of Colbert county in favor of appellee against appellant. The cause was tried upon pleading and proof as noted by the register and as appearing from the agreed statement of facts on file.

The question presented is whether or not the well-recognized rule of res adjudicata applies and whether or not the recovery sought is ruled thereby.

The doctrine forbidding the splitting the cause of action into several separate suits is well understood, and that all the breaches occurring up to the commencement of the action must be included therein. Code 1923, § 5721; McNeil v. Ritter Dental Mfg. Co., 213 Ala. 24, 104 So. 230; Shell v. Pittman, 229 Ala. 380, 157 So. 205; Stewart v. Burgin, 219 Ala. 131, 121 So. 420. Analogous thereto it is well observed, as to the rule of res adjudicata, in Crowson v. Cody, 215 Ala. 150, 110 So. 46, 49, as follows: "Where the issues were broad enough to comprehend all that was involved in the issues of the second suit, the test is, not what the parties actually litigated, but what they might or ought to have litigated. This is necessary to a due observance of the rule against splitting the cause of action (McNeil v. Ritter Dental Mfg. Co., 213 Ala. 24, 104 So. 230), dividing the grounds of recovery, and relitigating the established or admitted facts. Terrell v. Nelson, 199 Ala. 436, 74 So. 929." Clark et al. v. Whitfield, 213 Ala. 441, 105 So. 200; Fidelity-Phenix Fire Ins. Co. of N.Y. v. Murphy, 231 Ala. 680, 166 So. 604; Cobbs v. Norville et al., 227 Ala. 621, 151 So. 576; Rost v. Kroke, 195 Minn. 219, 262 N.W. 450, 106 A.L.R. 437, 441; Watson v. Clayton, 230 Ala. 59, 159 So. 481; Code 1923, § 5721.

When the issues are broad enough to comprehend all that was involved in the issues of the second suit, the test is, not what the parties actually litigated, but what they ought to have litigated applied to the status at the time of the rendition of the former decree, which is presumed to continue until the contrary is shown. Such judgment is conclusive as to the same parties or privies in estate or blood or in law with parties to a former action.

Was, then, the trial court correct in rendition of judgment to the effect indicated? The judgment was as follows:

"* * * that the judgments sought in this cause to be set aside grew out of the same rental contract between complainant and respondent as was the basis of a former suit hereinafter referred to and the same plea of set off as pleaded in the said case of Dawson v. Haygood, 24 Ala.App. 481, 136 So. 876, was the same defense to be interposed in these cases:

"* * * that the proposition of pleading the same set off for the landlord's breach of an oral contract has been held to be res adjudicata against the tenant's right to plead the landlord's breach of the same contract as a set off to a suit to recover rent for a subsequent month, as decided in the case of House v. Donnelly, 7 Ala.App. 267, 61 So. 18."

It is the rule that a plea of set-off or recoupment should be as certain as to the damages sought to be set off or recouped as if it were an original action brought by the defendant for that particular demand. Greer v. Malone-Beall Co., 180 Ala. 602, 61 So. 285; Roquemore v. Sov. Camp, W. O. W., 226 Ala. 279, 283, 146 So. 619; Lysle Milling Co. v. North Alabama Grocery Co., 201 Ala. 222, 77 So. 748.

And for the failure of such averment, demurrer was sustained to the plea in question, and the case of Dawson v. Haygood, 24 Ala.App. 481, 136 So. 876, was not tried upon the issue sought to be presented by the plea of set-off for breach of the rent contract. Hence, the only judgment on that plea was that of sustaining demurrer for its said sufficiency.

Such a judgment is not a bar in this suit to the plea sought to be tried in the first suit, for the reason that judgment was not pronounced upon the facts and merits of that case, or the phase thereof now more specifically presented by the amended bill. McClarin v. Anderson, 104 Ala. 201, 210, 16 So. 639. The judgment on demurrer in the circuit court was not within the rule which admitted all the well-pleaded facts and demanded a judgment of law arising out of or on those facts. Therefore, the judgment was not upon adjudicated facts, but upon defective pleading. For this reason said judgment was not conclusive on the parties in suits based upon installments subsequently accruing and in default. Such is in accord with the statute. Section 5721, Code 1923; McClarin v. Anderson, supra; Hanchey v. Coskrey, 81 Ala. 149, 1 So. 259.

That is to say, the authorities cited are to the effect that where the second action between the same parties is upon a different claim, the demand and claim or issue in the prior action operates an estoppel, only, as to matters in issue or points controverted upon the determination of which the final judgment was rendered. Irby v. Commercial Nat. Bank of Eufaula, 204 Ala. 420, 85 So. 509.

Under the rules that obtain, the judgment in the circuit court on the plea and demurrer exhibited was not res adjudicata as against this amended bill, in that such former judgment at law on the demurrer was not such as to work a mutual estoppel upon the same parties, and a bar to the proper setting up of a proper plea in the subsequent suit based on the statute for recovery of subsequently accruing installments. This is shown by the agreed statement of facts which brings the question as to a suit upon a defense to such suit upon subsequently maturing and severable installments under the statute. Code 1923, § 5721.

This severability is shown by the answer and cross-bill, stating the facts and former plea as follows: "* * * that the house and six acres of land were rented to J. R. Dawson at and for the sum of $15.00 per month, payable monthly, and that said land was never rented by the year, but that the tenant did farm and cultivate the six acres of land while he was in possession of same and while he paid his rent."

The former plea aided the cross-bill as exhibited and as a part thereof. Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90.

It was recently declared in Watson v. Clayton, 230 Ala. 59, 159 So. 481, that the "statute [Code, § 5721] authorizing action for each breach of contract where breaches occur at successive periods in an entire contract, but requiring inclusion in action of all breaches occurring up to commencement of action, held to refer to breaches such as of installment payments which mature according to tenor of a contract." (Bracket supplied.)

This authorized the different suits upon several installments of rent as they successively accrued as was done in this case. The failure of a proper plea in defense of the suit, upon antecedent accruing installments, did not prevent a proper plea in defense of a suit on subsequently accruing installments that come within the protection of the statute and our decisions.

The decree concludes: "That no other defense is shown by...