Southern Ry. Co. v. City of Attalla

• Decision Date: 14 June 1906
• Citation: 147 Ala. 653,41 So. 664
• Parties: SOUTHERN RY. CO. v. CITY OF ATTALLA.
• Court: Alabama Supreme Court

41 So. 664

147 Ala. 653

SOUTHERN RY. CO. v. CITY OF ATTALLA.

Supreme Court of Alabama

June 14, 1906

Appeal from City Court of Gadsden; John H. Disque, Judge.

"To be officially reported."

Action by the city of Attalla against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This was an action brought by the city of Attalla against the Southern Railroad Company for water alleged to have been taken by said railroad company from the tanks of the Alabama Great Southern Railroad Company, which water had been placed in said tank by the city for the use of said Alabama Great Southern Railroad Company only. There were three counts in the complaint. The first count alleged the wrongful taking of 50,000,000 gallons of water, and the damages are laid in the sum of $3,000. The second count alleged the conversion of 50,000,000 gallons of water. The third count sets up the contract between the city of Attalla and the Alabama Great Southern Railroad Company to furnish said railroad company with water for its exclusive use, the erection of tanks by the Alabama Great Southern Railroad Company for the reception of this water, and the taking therefrom by the Southern Railroad of 50,000 gallons per day for a period from the 1st day of October, 1899, to the 1st day of March, 1903, and a failure on the part of said Southern Railroad to pay for the same. Demurrers were interposed to the complaint, and overruled.

The defendant filed two pleas of the general issue, and the following special plea: "(3) Further answering the complaint, defendant says that the plaintiff, with full knowledge that defendant had taken or drawn said water from said tank and pipe and used and consumed the same, as alleged in the complaint, elected to waive the tort, and its action against defendant for the conversion of said water, by bringing and prosecuting its action in assumpsit in this court for the value of said water alleged to have been converted, which said action was brought and prosecuted prior to the bringing of this suit." Demurrers were interposed to this plea, but the record fails to show any action of the court taken from said demurrers. The defendant filed the following additional special pleas: "(4) Defendant says that plaintiff, before the bringing of this suit, and on, to wit, November 4, 1903, filed its suit in indebitatus assumpsit against defendant in the city court of Gadsden, a court of full and complete jurisdiction of the parties and subject-matter of said suit, in which it treated the defendant as a purchaser of said water alleged to have been converted by the defendant, and for the conversion of which it seeks to recover in this case, and in which said first-mentioned suit it sought to recover of defendant the amount due from it to plaintiff for said water, and that at the time plaintiff filed said first-mentioned suit it had full knowledge of all material facts and of the facts that defendant had taken and converted to its own use said water as alleged in said complaint in this suit. Wherefore defendant says plaintiff cannot maintain this action. (5) Defendant adopts plea 4 down to, but not including, the words 'Wherefore defendant says,' etc., and adds thereto the following additional averment: 'That plaintiff prosecuted said suit first brought to the settlement of the pleading therein, and the trial of the cause and development of the testimony, after which and before the court pronounced judgment in the cause, plaintiff took a nonsuit in said cause. Wherefore defendant says plaintiff cannot maintain this action.' "

The plaintiff interposed the following demurrers to pleas 4 and 5: "Because it does not appear how and in what manner the plaintiff is precluded in this action by having previously filed an action in assumpsit against the defendant. Because it does not appear from said pleas of defendant that the subject-matter of said suit is the same as of this action, or that the parties are the same. Because it does not appear that the action of assumpsit complained of and which was previously brought was prosecuted to judgment. Because from all that appears from said plea of defendant the plaintiff took a nonsuit in said action of assumpsit. Because it does not appear from said plea of the defendant that said action of the plaintiff, brought in assumpsit, was ever prosecuted to final judgment. Because, if all alleged in said plea of defendant should be proven true, then this would be no bar to this action." And to plea 5 this additional ground: "Because it appears from said plea that plaintiff took a nonsuit in said action before final judgment." Demurrers were sustained to pleas 4 and 5.

The evidence tended to show a taking by the defendant of water from the tanks of the Alabama Great Southern Railroad Company which had been placed there by...