Humphrey v. Terry
| Decision Date | 02 June 1921 |
| Docket Number | 8 Div. 362 |
| Citation | 89 So. 607,206 Ala. 249 |
| Parties | HUMPHREY v. TERRY. |
| Court | Alabama Supreme Court |
Rehearing Denied June 23, 1921
Appeal from Circuit Court, Madison County; Robt. C. Brickell, Judge.
Action by John D. Humphrey against Thomas T. Terry for damages for libel. From an adverse ruling on the pleadings, plaintiff took a nonsuit, and appealed. Affirmed.
David A. Grayson and Cooper & Cooper, all of Huntsville, and Callahan & Harris, of Decatur, for appellant.
R.E Smith and Douglass Taylor, both of Huntsville, for appellee.
In the former suit, wherein judgment was rendered against this plaintiff and in favor of this defendant and another, sued jointly with him, the complaint alleged that the two defendants "unlawfully, willfully, corruptly, and maliciously conspired and confederated and bound themselves together" under an agreement to make the same false entry on the municipal records of Huntsville which is the basis for the present suit, and it was further alleged that said conspiracy and unlawful agreement were executed by making the same addition to the records.
The theory of plaintiff's demurrer to defendants' plea of res judicata is that the charge of conspiracy in the former suit imposed upon plaintiff the burden of showing such a conspiracy as a condition to recovery, and hence that the verdict and judgment for the defendants--including this defendant--may as well have been founded upon plaintiff's failure to prove the conspiracy as upon his failure to prove a false and malicious publication; in short, that there were two essential and distinct issues on the face of the pleadings, only one of which is here presented, and that therefore the plea in question should have alleged that the present issue was in fact determined in that suit, and that the judgment was founded thereon.
The principle invoked by the demurrer is well settled in the law. Strauss v. Neertief, 64 Ala. 299, 38 Am.Rep. 8; Dobson v. Hurley, 129 Ala. 380, 30 So. 598; Hooper v. Pierce, 151 Ala. 517, 44 So. 108; Street v. Browning, 87 So. 527. It is, however, very clearly not applicable in this case. The gist of an action for a conspiracy is the damage, and not the conspiracy. L. & N.R.R. Co. v. National Park Bank, 188 Ala. 109 65 So. 1003.
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Becker v. Thompson, 31854.
...defendant Berberich by proof of fraud on his part. 27 C.J. 43; 12 C.J. 584; Gable v. Am. Ry. Express Co., 115 S.E. 903; Humphrey v. Terry, 89 So. 608, 206 Ala. 249; Howard v. McCarson, 110 So. 296, 215 Ala. 251; Holt v. Williams, 240 S.W. 864, 210 Mo. App. 470; Brackett v. Griswold, 112 N.Y......
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Becker v. Thompson
... ... his part. 27 C. J. 43; 12 C. J. 584; Gable v. Am. Ry ... Express Co., 115 S.E. 903; Humphrey v. Terry, ... 89 So. 608, 206 Ala. 249; Howard v. McCarson, 110 ... So. 296, 215 Ala. 251; Holt v. Williams, 240 S.W ... 864, 210 Mo.App ... ...
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THOMPSON PROP. v. Birmingham Hide & Tallow
...alleged but the wrong committed. Louisville & N.R. Co. v. National Park Bank, 188 Ala. 109, 65 So. 1003 [(1914)]; Humphrey v. Terry, 206 Ala. 249, 89 So. 607 [(1921)].' O'Dell v. State ex rel. Patterson, 270 Ala. 236, 240, 117 So.2d 164, 168 (1959). A civil conspiracy requires a combination......
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Thompson Properties 119 AA 370, Ltd. v. Hide, No. 1021411 (AL 7/9/2004)
...alleged but the wrong committed. Louisville & N.R. Co. v. National Park Bank, 188 Ala. 109, 65 So. 1003 [(1914)]; Humphrey v. Terry, 206 Ala. 249, 89 So. 607 [(1921)].' O'Dell v. State ex rel. Patterson, 270 Ala. 236, 240, 117 So. 2d 164, 168 (1959). A civil conspiracy requires a combinatio......