Jefferson County v. McAdory

• Decision Date: 05 March 1946
• Docket Number: 6 Div. 248.
• Parties: JEFFERSON COUNTY v. McADORY.
• Court: Alabama Court of Appeals

25 So.2d 396

32 Ala.App. 294

JEFFERSON COUNTY v. McADORY.

6 Div. 248.

Alabama Court of Appeals

March 5, 1946

Rehearing Denied March 19, 1946.

Harvey Deramus, of Birmingham, for appellant.

Sam T. Huey, of Bessemer, for appellee.

BRICKEN Presiding Judge.

It appears from the record on this appeal that J. E. McAdory brought his suit in the Circuit Court of Jefferson County Alabama, Bessemer Division, against Jefferson County, to recover the sum of $1,000, alleged to be due him for unpaid salary, earned by him as Deputy Tax Assessor of Jefferson County, Bessemer Division, for the months of October 1933, to and including May 1937, for work and labor done by him as such Deputy Tax Assessor during two separate terms of office one of which began on October 1, 1931, and ended September 30, 1939.

In response to the complaint the defendant interposed its plea of the general issue, in short by consent including the statute of limitations of one year, and of three years, and of six years, respectively, also waiver, estoppel, waiver and estoppel and res adjudicata.

The case was tried in the court below before the court, without a jury, upon an agreed statement of facts, from which it is shown that plaintiff McAdory, was the lawful Deputy Tax Assessor of Jefferson County, Alabama, Bessemer Division, for a four year term, beginning October 1, 1931, and ending September 30, 1935, and also for a four year term, beginning October 1, 1935, and ending September 30, 1939, called the second term, and from which he resigned after completing his services for the month of May, 1937. The salary of the plaintiff was fixed by the County Commission of Jefferson County at $225 per month, but during his first term of office, he was required by said Commission to take four ten-day, payless vacations, one each in the months of April, May and June, 1933, and one in September 1934, thus reducing his salary in said named months from $225 to $202.50 per month. He also was required by said County Commission in the same manner to take payless vacations during his second term of office for the months of October 1935 to May 1937, inclusive, aggregating twenty months at said reduced salary of $202.50 per month, for an aggregate of twenty months which reduction was at the rate of $22.50 per month, and aggregating a reduction during said second term of $450.

On January 4, 1937, plaintiff brought his suit against defendant seeking to recover the diminution in his salary during his first term of office, that is to say, for the months of April, May and June, 1933, and September 1934, as shown by amended counts 'A,' 'B,' 'C,' and 'D,' to the complaint, each respectively, which are attached to and made a part of said agreed statement of facts. In that suit the plaintiff on September 4, 1937, recovered judgment against Jefferson County. This suit was limited to the first term of office of said Deputy Tax Assessor, and was brought after that term had fully expired and when he had a right to sue for all of the money alleged to be due him for said term, because of the unlawful and unauthorized action of the County Commission of Jefferson County in attempting to diminish the salary of said officer during and for his first term of office, or any part thereof. Said Deputy Tax Assessor could not, when he brought this suit, sue for a part only of his salary which he had earned during his first term of office and which had expired on September 30, 1935, without binding himself by the legal effect of the judgment to be therein rendered. He could not at that time, split up his cause of action and bring suit for a part of his salary earned during his first term of office and then subsequently bring another action for another part of his salary earned during said first term. And so this court is of the opinion that the trial court did not err in its judgment holding that the judgment in favor of the plaintiff dated September 4, 1937, was res adjudicata, as to all of the salary due said Deputy Tax Assessor and which he had earned during his first term of office which expired September 30, 1935.

The doctrine of res adjudicata which precludes a subsequent litigation of the same cause of action is far broader in its practical application than the determination of the question directly involved in prior action. The judgment in such a case extends not only to the matter actually determined in that suit, but also to all other matters and questions which could have been properly determined in the former action. The rule applies to all questions falling within the scope of the original action, and which could have been presented by the exercise of due diligence. And this principle extends to both the claim and the defense thereto. Crowson v. Cody, 215 Ala.

150, 110 So. 46; Fife v. Pioneer Lumber Co., 237 Ala. 92, 185 So. 759.

If, in his first action, amended counts A, B, C and D, were not sufficient to cover the entire amount due plaintiff as salary for his work and services rendered during his first term of office which expired September 30, 1935, he should in that action have so amended his complaint as to cover such sums.

It follows, therefore, that the judgment of the trial court on the cross-appeal must be, and the same is hereby affirmed.

As to that part of the complaint which seeks to recover for unpaid salary of plaintiff earned during his term of office, which began October 1, 1935, and which ended so far as plaintiff is concerned, on the 31st day of May 1937, and which action covers a period of twenty months at $22.50 per month aggregating $450, and for which the trial court rendered judgment in behalf of plaintiff McAdory, it is the opinion and judgment of this court that the judgment rendered September 4, 1937 for the $292.50, is not res adjudicata as to said judgment for $450 for salary...