Williams v. Woods

• Citation: 121 Ala. 536,25 So. 619
• Parties: WILLIAMS v. WOODS ET AL.
• Decision Date: 05 April 1899
• Court: Alabama Supreme Court

25 So. 619

121 Ala. 536

WILLIAMS v. WOODS ET AL.

Supreme Court of Alabama

April 5, 1899

Appeal from chancery court, Clay county; J. R. Dowdell, Chancellor.

The bill in this case was filed by A. N. Williams against S. H Woods, Sarah A. Woods and W. J. Williams, to enforce the specific performance of a contract to convey lands. The bill avers the purchase of 40 acres of land, described, by W. J Williams of Samuel H. Woods on December 9, 1892, for $500, of which $300 was paid in cash, and his promissory note was executed and received for the balance, $200, to S. H. Woods payable October 15, 1893, and the execution of a bond for title to said land to him by the said S. H. Woods and wife on December 9, 1892, acknowledging the payment of the $300, and conditioned on the payment of the $200 balance on October 15 1893, to convey to him said lands by deed with warranty,-the bond for title being set out as an exhibit to the bill; that W. J. Williams was put in possession under his purchase at such time, but was forcibly ejected therefrom by the defendant S. H. Woods in March, 1893. Thereupon said Williams filed his bill in chancery for an injunction against said Woods from trespass. That afterwards a final decree was rendered in favor of said Williams on pleading and proof, February 10, 1894, but a rehearing was granted as to such decree at the next term of court, and W. J. Williams became a nonresident and was required to give security for cost, which he failed to do, and his bill was dismissed for such failure to give security for cost at the September term, 1894. The bill also avers that on the 29th of June, 1893, said W. J. Williams for a valuable consideration, transferred said bond for title to A. N. Williams, the complainant, and all of his interest in said land and put him in possession thereof. Complainant remained in possession until October, 1894, when defendant S. H. Woods took forcible possession and has kept it ever since. The bill avers the insolvency of S. H. Woods, and prays the specific performance of the contract and that defendant be required to account for the value of the rents received by him and that it be credited by him on such balance of the purchase money, also offering to pay any balance that might be found due.

The defendant S. H. Woods filed a plea of res adjudicata, the substance of which is sufficiently stated in the opinion. The complainant moved to dismiss this plea, because it was insufficient, and also demurred to the plea upon the following grounds: (1) For that such plea is not a sufficient defense to the bill. (2) The dismissal of the bill of complaint filed by W. J. Williams, for failure to give security for cost of the suit, as averred in the plea was not equivalent to a decree on the merits of such suit. (3) The averment that the cause was called to be heard when the respondent moved to dismiss the same for failure to give security for cost, is a conclusion of the pleader, unsupported by any facts averred in the plea. (4) The plea shows that the decree (Exhibit C) requiring complainant to give security for costs was not rendered when the cause was called to be heard, but in the progress of the cause and the preparation of the same to be in a condition to be heard, on motion of the defendant therein. (5) The averment that such decree was a consent decree is a conclusion of the pleader, unsupported by any facts stated in the plea, and the copy of such decree shows that it was admitted in open court that complainant was a nonresident, and not that such decree was by consent of the parties. (6) Such plea is duplicitous and a joinder of two defenses. (7) The dismissal of such bill for failure to give security for cost at the September term, 1894, was not equivalent to a dismissal on the merits; and the averment that such a decree was equivalent to a dismissal on the merits, is a conclusion of the pleader. (8) The averment that the decree requiring the complainant to give security for cost, was equivalent to a dismissal on the merits, is a conclusion of the pleader.

On the submission of the cause upon the motion to strike the defendant's plea and upon the demurrer to said plea, the court overruled both the motion and the demurrer, and held the plea to be sufficient as a bar to the maintenance of this suit. From this decree the complainant appears, and assigns the rendition thereof as error. Reversed.

Whetson, Graham & Haynes, for appellant.

Knox, Bowie & Dixon, for appellees.

HARALSON J.

The defendant, Woods, interposed in the court below his plea of res adjudicata, to the further maintenance of the bill in this case.

The facts set up in that plea, as stated by appellees' counsel in their brief in this court, are: "That on, to wit, the 25th day of March, 1893, W. J. Williams, the party described in the bill (in the original suit) as grantee of the appellant (in this suit) filed his bill against the appellee (S. H. Woods), asking for specific performance of the same contract which is here sued on; that an answer was filed to this bill, the cause (was) set for final hearing, and was submitted and a decree rendered granting the relief prayed for, (and) that respondent filed a petition for a rehearing, which after argument was granted. Thereupon, the cause, being fully at issue and testimony in on both sides, was called on to be heard, and the respondent moved to dismiss said cause, because complainant was a nonresident and had failed to give security for costs. This motion was confessed by (W. J. Williams, the) complainant (in that suit), and a consent decree was rendered, whereby it was provided, that unless security for costs was given within thirty days, the cause would stand dismissed. The security for costs was not given and the cause was dismissed; that by a mistake the cause was carried forward on the docket, and was called the next term of the court, the cause being at issue, the testimony on both sides having been taken, (and) the case was then, again dismissed for failure to give security for costs."

The appellees contend that the dismissal of said former suit constitutes res adjudicata under rule 28 of chancery practice.

The decree of the chancellor, which is attached to the plea as an...