Howell v. Howell

• Court: Supreme Court of Alabama
• Citation: 54 So. 601,171 Ala. 502
• Parties: HOWELL v. HOWELL ET AL.
• Decision Date: 02 February 1911

54 So. 601

171 Ala. 502

HOWELL v. HOWELL ET AL.

Supreme Court of Alabama

February 2, 1911

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by Henry Clay Howell against George G. Howell and others. From a decree dismissing the bill, complainant appeals. Reversed and rendered, and remanded.

Ullman & Winkler, for appellant.

James A. Mitchell and James A. Bilbro, for appellees.

MAYFIELD J.

Appellant as a tenant in common, filed his bill against the respondents, as his cotenants, to sell the lands described in the bill, for division, on the ground that the same could not be equitably divided or apportioned among the joint owners and, incidentally, to allot dower and homestead rights as to one of the tenants in common, and for an accounting against others for rents, incomes, and profits. The bill is evidently filed under section 5222 et seq. of the Code of 1907. The respondents demurred to the original bill. This demurrer being sustained, complainant thereafter twice amended his bill, and the respondents' demurrer to the bill as last amended was overruled. Thereafter, on April 10, 1908, the respondents, or some of them, filed a special plea in abatement of the suit, alleging that this action was commenced in the chancery court of Jefferson county on the 15th day of August, 1908, and that before that date, to wit on the 7th day of November, 1907, complainant had commenced a suit in the chancery court of Cherokee county, "which said bill was more than once amended by the complainant therein, the last amendment in which the said bill as amended is set out in full being filed on, to wit, the 7th day of April, 1908, and a copy of the said bill of complaint as last amended by the amendment filed on the said 7th day of April, 1908, is hereto attached and made a part of this plea, and the said complainant, Henry C. Howell, in said cause alleged or set out that he sued therein 'as executor of the estate of G. W. Howell, deceased.' And the defendants aver and allege that this suit is for the same subject-matter and seeks the same relief as the said action in the chancery court of Cherokee county, Ala.; that it is between the same or substantially the same parties, and these defendants are also defendants in that action, which said former suit so brought and prosecuted against these and the other defendants to this cause by the said complainant is still pending in the chancery court of Cherokee county, Ala., and not discontinued, tried, or determined, and this the said defendants are ready to verify." This plea was heard on its sufficiency and was by the chancellor held sufficient. Complainant then moved to strike the plea, which motion was overruled by the chancellor. The cause was then heard on this plea, the transcript of the proceedings in the chancery court of Cherokee being used by agreement as the evidence upon which the issue raised by the plea should be tried; and on this hearing the bill was dismissed, from which decree this appeal is taken, appellant assigning appropriate errors as to its rendition and as to the other interlocutory orders and decrees.

The suit in the chancery court of Cherokee county was no defense in bar or abatement of this suit in Jefferson county. The two suits, though partly between the same parties and involving the same subject-matter, were so different in object and purpose that the one could not be a bar to the other, no matter which was filed first. The real causes of action were not the same, in the two, though they concerned the same property, and were partly between the same parties, and though the relief sought might have been to some extent the same. The one action was by an executor solely, suing as such, thus representing and partly administering the trust; while the other was by an individual, suing in his own individual right, to sell the lands belonging to him and the other respondents as tenants in common.

The identity of complainants, of respondents, and of subject-matter, is not sufficient to make one suit a bar to the other; the suits are by no means the same. Defenses available in the one would be not at all available in the other. For example, a plea of nul tiel executor would defeat the one but not the other. That there was no necessity of further administration would and actually did defeat the former in part, but it would be no defense whatever to the other. The fact that the lands could be equitably divided among the tenants in common would defeat the last, a sale for division; indeed, if the averments of facts as to which there seems to be no dispute are true, it is the only complete defense to the bill; yet such fact would be no defense to the first suit.

It is true beyond question that all the relief sought in both bills ought not to be, cannot be, granted, and if granted in one it would be a bar to the other; but that alone is not sufficient to make the pendency of the one abate the other. To be sufficient to abate the action entirely, the final judgment or decree, when rendered in the first, must be good as a bar to the entire second action. That a part of the relief to be awarded in the two suits is the same is not sufficient to abate the second action entirely, unless it would be sufficient to bar it entirely.

Conceding without deciding, the identity of parties and of subject-matter, in the two suits, sufficient for one to abate or bar the other, there is not such identity of...