Roach v. Privett

• Decision Date: 20 May 1890
• Parties: ROACH v. PRIVETT.
• Court: Alabama Supreme Court

7 So. 808

90 Ala. 391

ROACH v. PRIVETT.

Supreme Court of Alabama

May 20, 1890

Appeal from circuit court, Jackson county; JOHN B. TALBY, Judge.

Action by Samuel P. Privett against Luther R. Roach on a judgment rendered by the supreme court of Tennessee on appeal from a nisi prius court.

The defendant pleaded the general issue, set-off, and specially pleaded that the nisi prius court, which first rendered the judgment against him in Tennessee, was without jurisdiction. The plaintiff demurred to this special plea on the ground that the plea showed on its face that the defendant prosecuted the appeal to the supreme court, and was there represented by counsel, and that said supreme court rendered the judgment here sued on. The court sustained the demurrer, and the defendant duly excepted. On the trial of the case the defendant offered a great deal of evidence to substantiate his plea of set-off; and this evidence tended to show that the plaintiff was indebted to the defendant in several small sums, and showed, also, that these sums were due when the first trial was had in Tennessee. One of the items sought to be set off against the judgment here sued on had been prosecuted to a judgment in a justice of the peace court; and, in attempting to prove the recovery of this judgment, the defendant testified that he had looked for the original papers, but could not find them, and that the justice before whom the judgment was recovered had looked also, but could not find them, and on cross-examination the defendant testified that this same justice was now justice of the peace, but he did not know whether he had been continuously justice, and could not say that he was appointed to the very same justiceship as he held when said judgment was rendered before him, or whether he came in possession of his same docket. Upon motion of the plaintiff, all the evidence of the defendant in reference to the establishment of his claim of set-off was excluded, and also his evidence as to the recovery and the existence of a judgment before the said justice of the peace. The defendant excepted to this ruling of the court. At the request of the plaintiff, in writing, the court gave the general affirmative charge in favor of the plaintiff, and then refused to give the general affirmative charge in favor of the defendant, although requested by the defendant in writing. The defendant excepted to the giving and refusal of each of these charges. There was judgment for the plaintiff; and the defendant now appeals and assigns the rulings of the court on the pleadings and evidence, the giving and refusal to give the said charges, as error.

J E. Browne and W. L. Martin, for appellant.

Hunt & Clopton, for appellee.

MCCLELLAN J.

The judgment sued on was rendered by the supreme court of Tennessee on appeal from a circuit court of that state, and is not only an affirmance of the latter judgment, but is also, in terms, an original judgment in the appellate court with order for execution out of that court for the amount there adjudged to be due. In the absence of proof of any law in Tennessee to the contrary, we must intend, not only that the judgment of the appellate tribunal is in accordance with the law of that state, but that it is the only judgment in force in the case in which it was rendered. Hassell v. Hamilton, 33 Ala. 280. Especially so as this ruling is in harmony with our own decisions as to the merger of judgments appealed from into judgments of affirmance on appeal. McArthur v. Dane, 61 Ala. 539; Werborn v. Pinney, 76 Ala. 291.

The special plea of the defendant below was an attempt to impeach the judgment sued on by showing that the nisi prius court which rendered the judgment appealed from, and which had thus merged into the judgment of the supreme court, was without jurisdiction; but it disclosed that the defendant had prosecuted the appeal, and submitted himself to the jurisdiction of the appellate tribunal. We concur with the circuit judge that this was fatal to the plea. It showed that the court which rendered the judgment sued on-the only subsisting judgment in the cause-had jurisdiction of the defendant, whatever may have been the fact in this regard as to the primary court. The defendant could not thus invoke the jurisdiction of the...