Terrell v. Nelson

• Decision Date: 12 April 1917
• Docket Number: 6 Div. 481
• Citation: 199 Ala. 436,74 So. 929
• Parties: TERRELL v. NELSON et al.
• Court: Alabama Supreme Court

74 So. 929

199 Ala. 436

TERRELL v. NELSON et al.

6 Div. 481

Supreme Court of Alabama

April 12, 1917

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by A.J. Terrell against Frank Nelson and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Harsh Harsh & Harsh, of Birmingham, for appellant.

Leader & Ewing and Z.T. Rudulph, all of Birmingham, for appellees.

THOMAS J.

On the 29th day of October, 1910, A.J. Terrell, appellant, filed his summons and complaint in the circuit court of Jefferson county against Frank Nelson, Jr., and Leo K. Steiner appellees, as sole defendants. The complaint contained four counts, each averring a special contract and seeking recovery for a breach thereof. As amended, the original complaint was held subject to demurrer. This judgment on demurrer was affirmed by this court. Thus was terminated the first suit. Terrell v. Nelson et al., 177 Ala. 596, 58 So. 989. Said plaintiff, on the 25th day of January, 1913, filed suit in the city court of Birmingham against said Nelson and Steiner, as sole defendants. The complaint contained five counts: The first two were the common counts, and three were upon a special contract. The complaint (except the common counts) discloses the fact that recovery was sought in each of said suits for the breach of a contract as to certain stone to be used in the completion of lock 3, on the Tombigbee river, during the year 1910. The common counts and the special counts in the last complaint were for a like sum claimed for and on account of a liability incurred or accruing during the year 1910. From an adverse judgment on demurrers to the pleas of res adjudicata, plaintiff appeals here assigning error to the giving of the affirmative charge at defendants' request, as well as to the overruling of plaintiff's demurrers to defendants' pleas.

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). 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. 7. In Chamberlain v. Gaillard, 26 Ala. 504, Mr. Justice Goldthwaite writing, the rule is declared 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 T. & 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 ancient 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. 954; 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.

What issues will be considered to involve a decision on the merits is not always easy of determination. In McCall v. Jones, supra, the court held that where a suit was defeated for nonjoinder or misjoinder of parties, a judgment rendered on such issue alone was not on the merits. The same is true of a judgment on a mere defect in the pleadings, or on any technical ground not going to the merits (Hanchey v. Coskrey, supra; Williams v. Woods, 121 Ala. 536, 25 So. 619; Strang v. Moog, 72 Ala. 460), or where the parties to the suit are shown not to have been the same (Fid. & Dep. Co., etc., v. Robertson, 136 Ala. 379, 34 So. 933; Jones v. Adler, supra), or where the question of ownership did not enter into the issue of the former suit (Gilbreath v. Jones, supra; Hanchey v. Coskrey, supra; Hall & Farley's Case, supra). In McClarin v. Anderson, 104 Ala. 201, 210, 16 So. 639, 641, the court said:

"It is well understood that when a demurrer is sustained for some defect in the pleadings, and judgment is not pronounced on the merits of the case, then there has been no judgment on the facts or merits, and consequently the demurrer, which was sustained because of defects in the pleadings, can form no bar to a subsequent action; but a demurrer, which admits all the facts which are well pleaded, demands the judgment of law arising out of or on those facts; and when the judgment is pronounced it is conclusive on the parties to determine the litigation between them, as if judgment had been rendered on verdict." Perkins v. Moore, 16 Ala. 13; Hanchey v. Coskrey, 81 Ala. 149, 1 So. 259; 1 Chit.Pl. 198; McClarin's Case, 109 Ala. 571, 19 So. 982.

The demurrer to the contest of a claim of exemptions, and judgment thereon held to be a final judgment, went to the right of contestant to proceed with the contest of exemptions so claimed, as decided in the...