Schillinger v. Leary

• Citation: 77 So. 846,201 Ala. 256
• Decision Date: 15 November 1917
• Docket Number: 6 Div. 638
• Parties: SCHILLINGER v. LEARY.
• Court: Alabama Supreme Court

77 So. 846

201 Ala. 256

SCHILLINGER v. LEARY.

6 Div. 638

Supreme Court of Alabama

November 15, 1917

Rehearing Denied Jan. 24, 1918

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

Action by M.B. Leary against F.L. Schillinger. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Act of April 18, 1911. Reversed and remanded.

London Yancey & Brower, of Birmingham, for appellant.

Cabaniss & Bowie, of Birmingham, for appellee.

THOMAS J.

The cause being called in the circuit court, the parties waived a jury trial, and consented that the issue be tried and determined by the court. Judgment was rendered for the plaintiff.

The complaint claims of the defendant the sum of $6,000, and interest thereon, "due by promissory note made by the Jefferson Investment Company, a corporation on the 7th day of May, 1914, payable 12 months after date to the order of Jefferson Investment Company and duly indorsed in blank by Jefferson Investment Company, which said note is now the property of the plaintiff, and which said note was also indorsed in blank by the defendant, and also by W.J Adams, G.W. Yancey, and G.W. Bain for the accommodation of said Jefferson Investment Company," together with the costs of collection, including a reasonable attorney's fee for services rendered in collecting, or attempting to collect, the debt evidenced by the note sued on; and it is averred that such reasonable attorney's fee so incurred was $600.

Defendant's pleas 1 and 2 were of the general issue; pleas 3, 4, and 4 1/2, of res adjudicata; while pleas 5 and 7, answered that the note sued on had been released and discharged by payment in full by the Jefferson Investment Company the maker of the note, and that the debt for which the action was brought had been paid.

The three several pleas of payment did not aver, in code form, that the debt had been paid "before action was commenced."

The assignments of error present for review the ruling sustaining demurrer to defendant's pleas 3, 4, 4 1/2, 5, 6, and 7, and the rendering of judgment against the appellant.

The present suit was brought on July 2, 1915. On the same day summons and complaint was filed in a suit between M.B. Leary, plaintiff, and Jefferson Investment Company, a corporation, defendant, on said note (the note indorsed by appellant, Schillinger, et al., and the one on which the present suit is brought), the complaint claiming, as a reasonable attorney's fee for collecting the demand, the sum of $600. Thus the plaintiff, Leary, at the same time, but in separate actions, sued the maker of the note, Jefferson Investment Company, a corporation, for the sums due on the note, and sued the defendant, F.L. Schillinger, as an indorser on said note, for like sums so due. On the trial of the suit against the maker of the note, judgment was rendered for the plaintiff for the sum of $6,742.92, which amount embraced an item of accruing costs.

Witness Bain, for the defendant, Jefferson Investment Company, testified that as an official of that company he paid the amount as shown by the cost bill introduced in evidence, and that he paid the note offered in evidence, before suit was filed. It is thus apparent that the intention of the plaintiff in bringing the two suits was to enforce payment of one, identical demand, with interest, attorney's fees and costs, and that after the principal sum was paid by the maker of the note, the further prosecution of both suits was a contest between the parties for attorney's fees and costs.

Payment of the debt and judgment was made by two checks of the Jefferson Investment Company, one for $384.55, in addition to the sum paid by Bain to the clerk and register of the court, $6,358.40. The aggregate amount of the payments so made by the maker of said note (including the small items of cost, to wit, clerk, $8.90, sheriff, $2.05) on the judgment in said former suit, was $6,742.95. The sum due plaintiff, being $6,732, was receipted for by his attorneys of record on April 12, 1916.

In the instant case, the note sued on contained, in its face, the following stipulation:

"Each maker and indorser hereof waives all right of exemption of personal property and agrees if this obligation is not paid at maturity, to pay the costs of collection, including a reasonable attorney's fee."

On the back of the note, above the signatures of Schillinger and the other indorsers, is the following stipulation:

"Each and every indorser of this note hereby waives all right of exemption of property from levy and sale under execution or other process for the collection of debts as provided for in the Constitution and laws of the state of Alabama or any other state of the United States of America, and it is hereby agreed by each indorser hereof that he shall pay all costs of collecting this note after failure to pay when the same becomes due under the terms hereof, including a reasonable attorney's fee for all services rendered in any way in any suit against any indorser or in collecting or attempting to collect or securing or attempting to secure this debt."

The evidence of payment being before the court under the plea of the general issue, we will proceed to a discussion of the merits of the case before recurring to the ruling on the pleas.

As to the purported pleas of res adjudicata, it is pertinent to observe that the principle upon which judgments are held conclusive upon the parties requires that the ruling should apply only to matters directly in issue, things material and traversable, and not to everything which was incidentally brought into the controversy during the trial. The general rule on this subject was declared in the case of the Duchess of Kingston, 20 Howell's State Tr. 355, 538; 2 Smith's Lead.Cas. 609 (573), where Lord Chief Justice De Grey said:

"From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is

evidence of any matter which comes collaterally in question, though within their jurisdiction; nor of any matter incidentally cognizable; nor of any matter to be inferred by argument from the judgment." This rule has been repeatedly affirmed and followed without qualification. 2 Kent, Com., 119-121; Arnold v. Arnold. 17 Pick. (Mass.) 4.

In Chamberlain v. Gaillard, 26 Ala. 504, Mr. Justice Goldthwaite declared the rule to be that judgments are final and conclusive between the parties when rendered on a verdict on the merits, not only as to the facts actually litigated and decided, but as to all facts necessarily involved in the issue, and that, although the particular matter is not necessarily involved in the issue, yet if the issue is broad enough to cover it, and it actually arose and was determined, it may then be connected with the record by evidence aliunde. Hall & Farley v. Alabama Terminal & I. Co., 173 Ala. 398, 56 So. 235; Gilbreath v. Jones, 66 Ala. 129: Hanchey v. Coskrey, 81 Ala. 149, 1 So. 259; Haas v. Taylor, 80 Ala. 459, 2 So. 633.

In Tankersly v. Pettis, 71 Ala. 179, it was held that, where there is no question as to the jurisdiction of the court, nor as to the identity of the parties, the inquiry whether the subject-matter of the controversy has been drawn in question and is concluded by a former adjudication--

"is determined when it is ascertained that the matters of the two suits are the same, and the issues in the former suit were broad enough to have comprehended all that is involved in the issues in the second suit. The inquiry is not what the parties actually litigated, but what they might and ought to have litigated, in the former suit."

This application of the rule of res adjudicata has been reaffirmed in McCall v. Jones, 72 Ala. 368; Lehman v. Clark, 85 Ala. 109, 4 So. 651; Glasser v. Meyrovitz, 119 Ala. 152, 24 So. 514; Wood v. Wood, 134 Ala. 557, 33 So. 347; Montgomery Iron Works v. Roman, 147 Ala. 434, 41 So. 811; Crausby v. Crausby, 164 Ala. 471, 51 So. 529.

To support a plea of res adjudicata, not only must the parties and the subject-matter be the same, but the judgment in the first case must have been on the merits of the case, and must be that sought to be pleaded in bar in the second suit. Jones v. Adler, 183 Ala. 435, 62 So. 777; McCall v. Jones, supra; Ryan v. Young, 147 Ala. 660, 41 So. 945; Gilbreath v. Jones, supra; Crausby's Case, supra; Hall & Farley's Case, supra. A judgment was declared to be conclusive against every defense that might have been made against the suit, whether pleaded or not, in Montgomery Iron Works v. Roman, supra, 147 Ala. 440, 41 So. 811. See discussion of this question in Terrell v. Nelson, 74 So. 929.

It may be conceded that it is not always of easy determination whether the decision in the first case was on the merits. Such however, is not the case here. On the former suit the same subject-matter that is here involved was ascertained and determined, and the issues in the former suit were broad enough to comprehend all that is involved in the issues in the second case, and the plaintiff and the maker of the note might and ought to have litigated in the original suit all of the matters embraced in the...