Williams v. Gaston

• Decision Date: 27 November 1906
• Citation: 42 So. 552,148 Ala. 214
• Parties: WILLIAMS ET AL. v. GASTON ET AL.
• Court: Alabama Supreme Court

42 So. 552

148 Ala. 214

WILLIAMS ET AL. v. GASTON ET AL.

Supreme Court of Alabama

November 27, 1906

Appeal from Circuit Court, Marengo County; A. H. Alston, Judge.

"To be officially reported."

Ejectment by Wesley J. Williams and others, as trustees, against Joe Gaston and others. From a judgment overruling a demurrer to a plea in abatement setting up the pendency of a suit in unlawful detainer by the same plaintiffs against the same defendants, plaintiffs appeal. Reversed and remanded.

Elmore & Harrison, for appellants.

Abraham & Simon and Henry McDaniel, for appellees.

TYSON C.J.

But a single question is presented by this record for our determination. It is whether the plea in abatement setting up the pendency, when this action was instituted, of a certain action of unlawful detainer brought by these plaintiffs against these defendants for the possession of the land here sought to be recovered, is subject to the demurrer interposed to it. The principle upon which such a plea is allowed and sustained is that the later action is deemed unnecessary and vexatious. And, clearly, in order to hold the subsequent suit to be unnecessary, it is an essential prerequisite that the judgment in the former or prior action should be conclusive between the parties and operate as a bar to the second. Rood v. Eslava, 17 Ala. 430; Hall v Wallace, 25 Ala. 438; Foster v. Napier, 73 Ala 595; 1 Cyc. p. 28 (2), and cases cited in note 38. It is not enough to sustain the plea that the same land is involved in both actions. It must be for the same injury, and the same matters must be in issue that were in issue and might have been tried in the first action; otherwise, the causes of action are not identical. 1. Cyc. p. 28.

It is entirely clear that a judgment in unlawful detainer, based as it must be, upon a complaint predicated upon a lawful entry by the defendant of the lands and a refusal to deliver the possession thereof to the plaintiffs upon demand in writing after the termination of his possessory interest, is not and cannot be a bar to an action of ejectment between the same parties for the same land, for the obvious reason that the issues involved in the two actions are not necessarily the same. In one the estate or merits of title cannot be inquired into (section 2135 of Code of 1896), whereas, in the other, the title to the land may be the only question involved. In the action of unlawful detainer the...