Jernigan v. Rainer Mercantile Co.

• Decision Date: 01 May 1924
• Docket Number: 4 Div. 61.
• Citation: 211 Ala. 220,100 So. 142
• Parties: JERNIGAN ET AL. v. RAINER MERCANTILE CO.
• Court: Alabama Supreme Court

100 So. 142

211 Ala. 220

JERNIGAN ET AL. v. RAINER MERCANTILE CO.

4 Div. 61.

Supreme Court of Alabama

May 1, 1924

Appeal from Circuit Court, Coffee County; Arthur B. Foster, Judge.

Action in ejectment by the Rainer Mercantile Company against Joe Jernigan and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

M. S Carmichael, of Montgomery, and M. A. Owen, of Elba, for appellants.

W. W Sanders, of Elba, for appellee.

GARDNER J.

This is an action in ejectment by appellee against appellants. The defendants interposed a special plea to the effect that the plaintiff was a corporation which had been dissolved more than five years prior to the institution of the suit, and was without capacity to use. Before any action was taken upon this plea the plaintiff filed a second suit in which these defendants filed a plea of the pendency of the first suit between the same parties concerning the same subject-matter which plea was confessed by the plaintiff, and judgment entered dismissing said second suit because of the pendency of the first. The first suit being subsequently called plaintiff filed a replication to the defendants' plea of the dissolution and its subsequent incapacity to sue, in which it was set up that in the second suit the defendant had pleaded the pendency of the first, and was therefore estopped from pleading the dissolution of the corporation and its incapacity to sue. The demurrer of the defendant to this replication was overruled, and the cause being thereafter tried judgment was rendered in favor of the plaintiff, from which the defendant has prosecuted this appeal. The action of the court in overruling the demurrer to the replication is the only question here presented for consideration.

Counsel for appellee relies in support of the ruling of the court below upon that line of authorities establishing the principle of estoppel in judicial proceedings to the effect that one who either obtains or defeats a judgment by pleading or presenting a thing in one aspect is generally held to be estopped from giving the same thing another aspect in a suit founded upon the same subject-matter.

This doctrine of estoppel rests upon the purpose of the law to maintain good faith, promote common honesty, and the prevention of fraud. The principle has been given application in numerous decisions of this court, among them: Millitello v. B. F. Roden Gro. Co., 190 Ala. 675, 67 So. 420; Harrison v. Harrison, 200 Ala. 379, 76 So. 295; Hill's Adm'r v. Huckabee, Adm'r, 70 Ala. 183; Brown v. French, 159 Ala. 645, 49 So. 255; Wooddy v. Matthews, 194 Ala. 390, 69 So. 607-and other authorities cited by counsel in brief.

In order, however, for the estoppel to be maintained, it must appear that the party against whom the estoppel is pleaded has assumed positions inconsistent.

Counsel for appellee argue upon the assumption that defendant's plea in the second suit of the pendency of another suit between the same parties concerning the same subject-matter acknowledged the effectiveness of the...