Du Boise v. Brewer
| Decision Date | 19 August 1977 |
| Citation | 349 So.2d 1086 |
| Parties | J. C. DU BOISE v. Burie BREWER, Jr., et al. SC 2423. |
| Court | Alabama Supreme Court |
Champ Lyons, Jr. and Larry U. Sims, Mobile, for appellant.
James C. Wood and Jonathan P. Gardberg, Mobile, for appellees.
On this appeal we must decide the question of whether a prior judgment in an action for trespass to lands, and the cutting of timber therefrom, will bar a subsequent action between the same parties to establish a boundary line. Under the prior case law we are compelled to hold the former judgment is not a bar to the latter action; and, accordingly, we reverse and remand.
A background of the essential facts will aid in understanding the controversy involved on this appeal. In December 1972, Burie and Helen Brewer, appellees and defendants in the instant case, filed an action against J. C. Du Boise, appellant here, claiming damages for trespass to certain described land because of the cutting of timber from, and the removal of a fence on, those lands. Du Boise answered by general denial, and thereafter, a jury verdict was rendered in favor of the Brewers for $2,000.
On August 11, 1976, Du Boise commenced this action against the Brewers for a determination of a boundary line between their respective lands. The complaint charges there is an area in dispute consisting of a strip of land which is seventy-eight (78') feet in width which belongs to Du Boise and is also claimed by the Brewers without title or the right of possession.
The Brewers responded by filing a motion to dismiss, or in the alternative for summary judgment, based on Du Boise's failure to assert this claim as a compulsory counterclaim, pursuant to Rule 13(a) of the Alabama Rules of Civil Procedure, in the former action. From the trial court's order, dismissing this action with prejudice, Du Boise appeals.
In brief, the Brewers set out the same argument that was the basis of their motion to dismiss in the trial court. They contend the present action to establish a boundary line involving the same property flows from the same transaction and subject matter as their prior suit and should have been asserted as a compulsory counterclaim under Rules 13(a) and 13(f), ARCP.
It should be noted that ARCP became effective shortly after Du Boise filed his answer in the first suit. The Brewers rely on this fact to support their contention that Du Boise's present action is barred by his failure to raise it in the earlier trial.
At first glance, it seems the applicability of Rule 13(a) will be dispositive of this appeal. However, after a careful review of the case law in this area, we hold the present action not barred and there is no need to address the issue of whether ARCP governed this proceeding.
In support of this holding is Dollar v. McKinney, 272 Ala. 667, 133 So.2d 673 (1961), where the...
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Ex parte James
...between law and equity have been abolished and there is only one form of action, known as a `civil action.'" Du Boise v. Brewer, 349 So.2d 1086, 1087 (Ala.1977). It is also at odds with other rulings of this Court, where the rule of requiring "complete disposition" of a claim has been appli......
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John R. Cowley & Bros., Inc. v. Brown
...in which all claims between the parties should be litigated. Whitehead v. Hester, 512 So.2d 1297, 1300 (Ala.1987), citing Du Boise v. Brewer, 349 So.2d 1086 (Ala.1977); Rule 2, A.R.Civ.P. "Alabama law, even prior to the effective date of the Alabama Rules of Civil Procedure, was to the effe......
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Whitehead v. Hester
...one form of action in Alabama, known as a "civil action," in which all claims between the parties should be litigated. DuBoise v. Brewer, 349 So.2d 1086 (Ala.1977); Rule 2, Alabama law, even prior to the effective date of the Alabama Rules of Civil Procedure, was to the effect that the char......
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Gibbs v. TF & G Indus. Partners
...the plaintiffs did not seek to have the boundary line judicially determined in their original trespass action, citing Du Boise v. Brewer, 349 So.2d 1086 (Ala.1977). TF & G Industrial Partners contends that even though Du Boise dealt with compulsory counterclaims, that "the Court was giving ......