Dickson v. Alabama Machinery & Supply Co.

• Decision Date: 05 April 1921
• Docket Number: 3 Div. 379
• Citation: 89 So. 843,18 Ala.App. 164
• Parties: DICKSON v. ALABAMA MACHINERY & SUPPLY CO.
• Court: Alabama Court of Appeals

89 So. 843

18 Ala.App. 164

DICKSON v. ALABAMA MACHINERY & SUPPLY CO.

3 Div. 379

Court of Appeals of Alabama

April 5, 1921

Rehearing Denied May 31, 1921

Appeal from Circuit Court, Lowndes County; A.E. Gamble, Judge.

The Alabama Machinery & Supply Company brought its action against R.S. Dickson to recover for material furnished and work done in covering a barn belonging to defendant.Defendant interposed pleas of set-off and recoupment claiming damages to the barn and its contents because of the manner in which the work was done.After remandment, the plaintiff sought to take a nonsuit, to which the defendant objected, insisting on his right to have his damages ascertained under his pleading.The court ordered a nonsuit entered, and from this order defendant appealed.Reversed and remanded.

Certiorari denied, 89 South. ---.

Leader Ullman & Ewing, of Birmingham, for appellant.

Ball &amp Beckwith, of Montgomery, for appellee.

MERRITT J.

On a former appeal (17 Ala.App. 195, 84 So. 416), this case was reversed and remanded.When again called for trial in the lower court, the plaintiff moved for a nonsuit, which was granted over the objection of the defendant and over the motion of the defendant for judgment nil dicit on his pleas of set-off and recoupment, and his insistence that the trial proceed on said pleas as provided for by Acts of the Legislature 1919, p. 825.

The plaintiff could not by taking a nonsuit deprive the defendant of the right to have judgment against the plaintiff on his pleas if proven, and the case should have proceeded to a determination of these issues; this being the evident intent of the Legislature by such act.There is no merit in the contention that as this case was pending at the time of the adoption of this act, its provisions could not apply to the instant case.This act is remedial, it neither enlarges nor diminishes an existing right, but as applied to this case simply deprived the plaintiff from precluding the defendant from having a determination of his pleas, founded on or growing out of the same transaction by which the plaintiff sought to fasten liability on the defendant.

Where a new statute deals with procedure only, prima facie it applies to all actions, those which have accrued or are pending and future actions.Sutherland on Statutory Construction, p. 630.There is nothing in the language of the act to indicate a legislative intention that the defendant should be deprived of the right to proceed to judgment on his pleas, only in cases thereafter instituted.Before the passage of the act as a matter of procedure the plaintiff could have taken a nonsuit, and defeated defendant's right to a hearing on his pleas, while after the passage of the act, as a matter of procedure, the plaintiff could still take a nonsuit, but not to the extent of depriving the defendant of the right to have judgment against the plaintiff on such pleas.The act does not impair the obligation of any contract or affect any vested right; it merely furnished the defendant with a mode of procedure, without depriving the plaintiff of any right.It does not compel the plaintiff to proceed in any particular manner with his case, but in case he does proceed in the manner named, it shall not be to the detriment of the defendant where such pleas are on file as stated in the act.To this there is no constitutional objection.Such an application of the act is not so much retroactive as active upon an existing condition of things to wit, "in all actions of law in which the defendant files a plea of set-off or recoupment," and the plaintiff takes a nonsuit.Laird v. Carton,196 N.Y 169, 89 N.E. 822, 25 L.R.A. (N.S.) 189.In support of this construction, we may mention a few cases which are particularly forceful.In Sampeyreac v. U.S., 7 Pet. 222, 8 L.Ed. 665, it was said that it had been repeatedly decided in the Supreme Court of the United States that the retrospective operation of a law providing a remedy forms no objection to it."Almost every law providing a new remedy affects and operates upon causes of action existing at the time the law is passed."The case of Peoples v. Tibbets, 4 Com.(N.Y.) 384, was an application by the Attorney General for leave to file an information in the nature of a...