Ex parte Adams
| Decision Date | 26 May 1927 |
| Docket Number | 6 Div. 848 |
| Citation | 113 So. 235,216 Ala. 241 |
| Parties | Ex parte ADAMS. |
| Court | Alabama Supreme Court |
Original petition of E.Y. Adams, as administrator of the estate of Lillian Douglas, deceased, for mandamus, to Hon. Joe C. Hail Judge of the Tenth Judicial Circuit. Mandamus denied.
H.M Abercrombie, of Birmingham, for appellant.
Leader & Ullman and R.B. Evins, all of Birmingham, for appellee.
It seems from the former decisions of this court that, when a cause is dismissed or stricken from the docket without more it is not such a final judgment as will support an appeal. Ex parte Attorney General, 142 Ala. 87, 38 So. 835, 110 Am.St.Rep. 20; Davis v. McColloch, 191 Ala. 520, 67 So. 701. It seems, however, that, where the dismissal is followed up by a judgment in favor of defendant against the plaintiff for the cost, it is such a judgment as will support an appeal, and mandamus is not the proper remedy to revise the action of the trial court. Ex parte Hendree, 49 Ala. 360. We think, however, that the record in the instant case shows that it was merely dismissed and was not followed up by a judgment for cost. Indeed, this is all that is shown by the record which purports to contain the orders of the trial court. It is true that the answer of the respondent, after showing a dismissal of the cause, contains the following recital: "It is further ordered and adjudged by the court that the plaintiff be taxed with all cost herein accrued for which execution may issue." It is also true that the answer bears a certificate of the clerk, but which only goes to the correctness of the motion to dismiss or abate and does not refer to the order or orders of the count. On the other hand, the rebuttal record, as sent up, as disclosing the orders of the trial court, does not contain the quoted portion from the answer, and is accompanied by the clerk's certificate to the fact that it contains, not only a correct copy of the motion to dismiss or abate, but all orders thereon. We must therefore accept as true that the quoted portion of the answer as a part of the order was not made, and mandamus is the appropriate method to revise the action of the trial court in dismissing this cause as to the Pizitz corporation.
Section 5657 of the Code says:
"No suitor is entitled to prosecute two actions in the courts of this state at the same time, for the same cause and against the same party, and in such a case the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously; and the pendency of the former is a good defense to the latter, if commenced at different times."
The plea in abatement in the instant case is under the latter part of this provision, and sets up the pendency of the former suit as a defense to the latter. Of course, the parties to the two suits must be the same and the cause of action, as set up in each suit must be the same. We think that the cause of action as set up in the two suits, while perhaps described in varying language, is identical--that is the same wrong--though the...
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State v. Grayson
...the petition is not final because it does not tax the costs against either party, citing in support of this contention Ex parte Adams, 216 Ala. 241, 113 So. 235. contention is answered by the fact that the statute under which the proceeding was instituted makes no provision as to the items ......
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Breed v. Atlanta, B. & C.R. Co.
...approved the doctrine of South & North A . R. R. Co. v. Sullivan, supra, evidently intending to make clear that what was written in the Adams case was to be read as in conflict with the Sullivan case. As applied to two actions, one a revivor of the action for personal injuries, another an a......
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