Louisville & N.R. Co. v. Tally

• Decision Date: 12 June 1919
• Docket Number: 6 Div. 794
• Citation: 203 Ala. 370,83 So. 114
• Parties: LOUISVILLE & N.R. CO. v. TALLY.
• Court: Alabama Supreme Court

83 So. 114

203 Ala. 370

LOUISVILLE & N.R. CO. v. TALLY.

6 Div. 794

Supreme Court of Alabama

June 12, 1919

Rehearing Denied Oct. 23, 1919

Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.

Action by Mrs. Etta Tally against the Louisville & Nashville Railroad Company for damages for the death of her husband. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Some of the counts allege that plaintiff's intestate was a passenger, and others allege that the servants or agents in charge of the train which killed intestate negligently failed to use the means at hand to prevent the injury, or that he was wantonly killed by the servant or agent in charge of appellant's train.

By its second plea as amended, appellant sets up that on, to wit the 2d day of April, 1917, the plaintiff in the above-styled cause, Mrs. Etta Tally, as administratrix of the estate of W.F. Tally, deceased, by her attorneys, Henby & Jones, filed in the District Court of the United States for the Southern Division of the Northern District of Alabama a suit against the Louisville & Nashville Railroad Company, a corporation the defendant in the above-styled cause, a copy of which complaint in said suit so filed in the said District Court of the United States is attached hereto, marked "Exhibit A" and made a part hereof; that the cause of action alleged and sued on in the said suit in the said District Court of the United States, as set forth in said complaint marked "Exhibit A," is the same and identical cause of action sued on in this court, both being suits for damage for the death of W.F. Tally, the intestate, husband of Mrs Etta Tally, the administratrix, said intestate being struck and killed by a train of the defendant on February 20, 1917 that the plaintiff, Mrs. Etta Tally, administratrix of the estate of Will F. Tally, in the said suit so filed in the said District Court of the United States, as set forth in said Exhibit A, is the same and identical person who sues as administratrix in this case in the circuit court of Jefferson county, Ala., and the said Mrs. Etta Tally is the same person and sues in the same capacity in this suit now pending in the circuit court of Jefferson county as in the said suit filed in the said District Court of the United States, set forth in said Exhibit A; and that the Will F. Tally, the intestate in said suit in the District Court of the United States mentioned and named in said Exhibit A, is the same and identical person named W.F. Tally, the intestate in this suit in the circuit court of Jefferson county, Ala.; that on the said 2d day of April, 1917, after said suit had been filed in the said District Court of the United States, the said court rendered and entered a judgment in said suit so filed in said District Court of the United States in favor of the plaintiff and against the defendant for the sum of $500 and costs in said suit; and that on, to wit, the 5th day of April, 1917, the said judgment was fully satisfied by the payment of the amount of said judgment and the amount of said costs to the clerk of the said District Court of the United States; that said judgment so entered on the said 2d day of April 1917, in the said District Court of the United States, was in the following language, to wit:

Monday, April 2, 1917.

The District Court of the United States in and for the Southern Division of the Northern District of Alabama met pursuant to adjournment. Present Hon. W.I. Grubb, United States District Judge, Northern District of Alabama, presiding; Ralph W. Quinn, Assistant United States Attorney; H.A. Skeggs, United States Marshal; and Chas. J. Allison.

This cause coming on to be heard, this day, come the parties herein by counsel, and in person, and in open court made known that they have consented and agreed, and do now consent and agree, that a judgment be entered in this cause in favor of the plaintiff and against the defendant for the full and complete sum of five hundred dollars and costs of this suit, except an attorney's tax fee, which was waived in open court by counsel for plaintiff.

Thereupon it is ordered, adjudged, and decreed by the court that the plaintiff have and recover of and from the defendant the full and complete sum of five hundred dollars, and costs of this suit, except an attorney's tax fee, for which costs and judgment an execution may issue. And the defendant further avers that said judgment of $500.00 and costs was fully paid on April 5, 1917.

Replying to this plea, plaintiff set up replication 2, as follows:

That the court that rendered said judgment was without jurisdiction of the person of the plaintiff and had no jurisdiction of the plaintiff, in that plaintiff did not institute said suit in which said judgment was rendered, or authorize any one else to institute said suit, and did not have any knowledge that said suit had been filed until after the rendition of said judgment, and has never consented to the bringing of said suit, and has never ratified in any way the bringing of said suit in her name or in any way consented or ratified in said judgment.

(3) Plaintiff says that said suit was instituted by certain attorneys without her knowledge and without her consent and without her authority, and that said attorneys were not employed, retained, or otherwise authorized by her, at the time said suit was instituted, to represent her interest in said matter or to bring said suit, and had no authority or consent from her to do so. And plaintiff further avers that she did not know that said suit had been brought by said attorneys until long

after said judgment had been rendered, and that she had received no part of the money for which said judgment was rendered and has in no way consented to or ratified the action of said attorneys on rendition of said judgment.

The demurrers raised the proposition that the judgment of the United States District Court is not void on its face, that it cannot be collaterally attacked, and...