McLaughlin v. Beyer

Decision Date23 January 1913
Citation61 So. 62,181 Ala. 427
PartiesMcLAUGHLIN v. BEYER (three cases.
CourtAlabama Supreme Court

Rehearing Denied Feb. 14, 1913

Appeal from City Court of Birmingham; William M. Walker, Judge.

Action by Rosa Beyer, by her next friend, against Lizzie N McLaughlin. Judgment for plaintiff, and defendant appeals from the judgment, and also from orders refusing to amend and to set aside the judgment. Affirmed.

See also, 58 So. 1037.

The plea in abatement is as follows: "Comes defendant in the above-entitled cause, and for plea in abatement of the said complaint sets down and says: That at the time of the suing out of such complaint herein, and of the commencement of this action against the defendant, there was pending against this defendant a former suit by substantially the same party for substantially the same cause of action, that is to say, at the said time, there was pending in the city court of Birmingham in Jefferson county, state of Alabama, cause No 26,217 of Clara Beyer et al. against this defendant, action for libel and slander, as therein set out, as by the record thereof remaining in the said court appears, which said suit is between substantially the same parties and for substantially the same cause of action as therein shown, and is still pending and undetermined therein, and this defendant is ready to verify." Motion to dismiss was made on the grounds set out in the plea above, for the reason that it is shown that on January 16, 1912, the cause set out in said plea was dismissed out of this court, and plaintiff has not paid the costs of said former suit. Another plea in abatement was filed setting up the same state of facts as set out in the plea above, but substituting for Clara Beyer, Rosa Beyer by next friend, and for the number 26,217, the number 23,617, and alleging additionally that said suit was heard on January 24, 1912, and determined in favor of this defendant by the city court wherein it was tried. The exhibits show that, on motion to dismiss, the court entered a judgment of dismissal because of the failure of the plaintiff to answer interrogatories filed by the defendant. The defendant demurred for the reasons noted in the opinion.

The following charges were refused to the defendant: (13) "The court charges the jury that, in considering the weight of the evidence in this case, they may look at the character of the evidence, and the reasonableness of it taken in connection with the surrounding facts in the testimony before them, and, if any of the jury does not believe the evidence in behalf of the plaintiff to be reasonable, they must find their verdict for the defendant." (15) "The court charges the jury that an accusation of slander is easy to be brought and hard to be defended against, though the defendant be ever so innocent." (16) "The court charges the jury that the object of the law in separating witnesses so that they cannot hear each other testify is to ascertain whether or not the facts as related by the witnesses are true, and, if the jury believe that the statements of the witnesses are materially variant from each other, then they are authorized to reject all of such evidence in making up their finding." (17) "The court charges the jury that each of the parties to this cause is entitled to the independent judgment of each of the jurors as to the fact and the truthfulness of the facts in evidence before them, and unless all of the jury are reasonably satisfied of the truthfulness of the witnesses for the plaintiff, as to proving the allegations of the complaint, they must find their verdict for the defendant." (20) "The court charges the jury that there is no evidence before them as to the special damages claimed by the defendant in her complaint, and that as to such they must find their verdict for the defendant." (22) "The court charges the jury that when the plaintiff alleges such damages she assumes the burden of proving such damages, and that she has not proved to the jury any special damages in this case, and that they must find for the defendant as to any special damages claimed by plaintiff."

Sterling A. Wood and Clement R. Wood, both of Birmingham, for appellant.

Harsh, Beddow & Fitts and W.J. Whittaker, all of Birmingham, for appellee.

MAYFIELD J.

These three causes by agreement are submitted as one cause. Appeals Nos. 529 and 530 are supplemental to appeal No. 531. No. 529 is an appeal from an order declining to amend a judgment by striking out a phrase thereof, "is not well taken in law and." No. 530 is an appeal from an order or judgment declining to set aside the judgment in the main case on the ground that the judge trying the case was related to the attorney for plaintiff within the prohibited degree.

We do not think there is any reversible error as to either of the two subsidiary appeals.

No motion was made in the lower court to correct the judgment or to set it aside, until long after the 30 days during which the trial court, under the local statute, had control over the judgment, had expired. This alone would have prevented the trial court from granting either of the motions. Not only this, but the term of the court had expired, which would have prevented the court from granting either motion under the general statutes. They were not motions to amend the judgment nunc pro tunc--which the court can do at any time and without notice to the opposite party.

Moreover, the motions were not made until after the movant had perfected an appeal to this court, and had superseded the execution of the judgment which she sought to have set aside. Thus, appellant, by her own act, had removed the case wholly and absolutely from the trial court into this court. The effect of this appeal was to cause the trial court to lose all jurisdiction and control of the case pending the appeal to this court. The inferior court must, in such a case, of necessity, yield to the superior jurisdiction. The case cannot be pending in both courts at the same time. The loss of jurisdiction in the lower court is so complete as to require either party who seeks relief from any error--except a few, not necessary here to mention--to apply to the higher court. This is clearly but just and right so far as the appellant is concerned. She, having taken her appeal to this court, ought not to be allowed to still proceed in the lower court, and, so, pursue two remedies at the same time. The following authorities are conclusive on this subject: Elliott on Appellate Procedure, 541 et seq.; Allen v. Allen, 80 Ala. 154; Boynton v. Foster, 7 Metc. (Mass.) 415; Ensminger v. Powers, 108 U.S. 292, 2 Sup.Ct. 643, 27 L.Ed. 732; Mitchel v. United States, 9 Pet. (U.S.) 711, 9 L.Ed. 283; Keyser v. Farr, 105 U.S. 265, 26 L.Ed. 1025; Coates Bros. v. Wilkes, 94 N.C. 174; Stewart v. Stringer, 41 Mo. 400, 97 Am.Dec. 278.

We do not think there was any reversible error in the rulings or judgments of the trial court as to the plea of abatement, of pending suit, or as to the plea in bar, of res judicata.

As to the first, it is sufficient to say that no evidence was offered in support of the plea to carry the question to the jury. The plea set up matter of record, and the proof offered in its support neither showed nor tended to show a pending suit between the same parties, as to the same cause of action, as alleged in the plea. One record, that as to the action between the same parties, showed that the case was not pending when the plea was filed, nor at the time of the trial, but had been dismissed and was not then a pending action between the parties, as alleged. As to the other record, it is sufficient to say that this record was not of any action between the parties to the action in which the plea was interposed, but was an action against the defendant, brought by another and different party, to wit, Clara Beyer; and no evidence was offered to show that Clara Beyer and this plaintiff, Rosa Beyer, were one and the same person suing in different names. So there was no sufficient evidence to carry this question to the jury, and hence the court did the correct thing to enter a judgment for the plaintiff on this plea of abatement.

As to the plea in bar of res judicata, we think it was insufficient, and that the demurrer...

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    ...Snare & Triest Co. v. Friedman, 169 F. 1 (3d Cir.), cert. denied, 214 U.S. 518, 29 S.Ct. 700, 53 L.Ed. 1065 (1909); McLaughlin v. Beyer, 181 Ala. 427, 61 So. 62 (1913). rights of the infant are not prejudiced thereby, and he may still take advantage of his disability Respondents argue that ......
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