Johnson v. Odom

• Decision Date: 15 December 1914
• Docket Number: 149
• Citation: 66 So. 853,11 Ala.App. 364
• Parties: JOHNSON v. ODOM.
• Court: Alabama Court of Appeals

66 So. 853

11 Ala.App. 364

JOHNSON v. ODOM.

No. 149

Court of Appeals of Alabama

December 15, 1914

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Detinue by T.G. Johnson against D.F. Odom, for the recovery of a cow. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

It appears from the proof that on a former occasion in the city court of Montgomery, Odom sued Johnson in detinue and in trover for certain cattle, among which appears to have been the cow made the basis of this suit, and that the judge of said court of Montgomery sitting without a jury found for defendant, the plaintiff in this case, as against the plaintiff in the former case, defendant in this case, as to the particular cow mentioned in the present case, and found for plaintiff in the other case as to the other cows mentioned. That said judgment has never been appealed from but is still in force and effect.

L.A Sanderson, of Montgomery, for appellant.

Hill, Hill, Whiting & Stern, of Montgomery, for appellee.

PELHAM P.J.

From the record before us it appears that the question of an adjudication or judicial determination of the same matter between the parties in a former suit was made an issue by the parties without the aid of formal pleadings on the trial of the case before the judge sitting without a jury.

It was shown by the undisputed evidence, introduced without objection on the trial, that an action between the same parties as to the same subject-matter had been previously brought in a court of competent jurisdiction, and a final judgment on the merits rendered therein in favor of the appellant. This was conclusive of the matter in controversy and constituted a bar to any further suit between the same parties on the same cause of action. Strang v. Moog, 72 Ala. 460; Tankersly v. Pettis, 71 Ala. 179.

The former action was in trover and the present in detinue, but an action of trover is barred by an action of detinue to the same subject-matter between the same parties, and likewise an action of detinue is barred by an action of trover. Thompson v. Odum, 31 Ala. 108, 68 Am.Dec. 159; Tarleton v. Johnson, 25 Ala. 300, 60 Am.Dec. 515; Patton v. Hamner, 33 Ala. 307.

The matter in controversy between the parties having passed into a final judgment rendered by a court of competent jurisdiction, it had lost its vitality as the subject-matter of a cause of action, and become merged or swallowed up...