106 So. 180 | Ala. | 1925
Lead Opinion
The trial judge evidently gave the general affirmative charge for the defendant on the theory that the two *58 plaintiffs could not recover jointly because their claims were separate and not joint, and that, not being entitled to recover jointly, they could not recover at all.
We see no answer to that view of the case. It has been settled in this state that there is no community of interest between successive mortgagees of the same property. Crowson v. Cody,
In such a case — a joint action with an absence of a joint demand founded upon a joint interest — the action must fail entirely. Winter-Loeb Grocery Co. v. Boykin,
There is no question here of variance between allegations and proof. As declared in Winter-Loeb v. Boykin, supra, there is simply a failure of proof, of which advantage must be taken by an appropriate instruction to the jury, as was done in this case.
When the general affirmative charge is requested and given, the trial court is not bound by the theory upon which counsel base their request; and, conceding that counsel did not have in mind, and did not clearly state to the court, the principle above stated, the court will not be put in error for that reason alone.
The evidence showed no community of interest which would authorize a joint action and joint recovery by these two plaintiffs, and we are constrained to hold that the instruction in question was properly given.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.
Addendum
Our decision in this case does not involve a determination of the relative titles and possessory rights of the two mortgagee plaintiffs in detinue, nor of the property status of the timber sued for. Regardless of those considerations, the absence of any interest in common, and of any joint right of recovery, is a bar to their joint maintenance of this action.
Counsel for appellant make an earnest and forceful appeal to the court to do justice regardless of any so-called technical rule as to the improper joinder of parties plaintiff.
The rule we are enforcing may seem to be but technical when applied to isolated cases, yet it is based upon the principle of practical expediency that it will not do to allow a joint action at law by two or more plaintiffs for the enforcement of distinct and unrelated rights. Such claims must be prosecuted separately, and this requirement cannot be fairly stigmatized as a denial of justice.
So far as the effect of this decision is concerned, the judgment for defendant, predicated entirely on a misjoinder of parties plaintiff, will not be a bar, on the principle of res judicata, to the maintenance of individual suits hereafter within the period of statutory limitation. McCall v. Jones,
Application overruled.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.