127 Ala. 254 | Ala. | 1899
The appeal in this case is taken on the record without any bill of exceptions, and the assignments of error relate, to the rulings of the court on the demurrers to the third, fourth and fifth pleas and on the demurrer to the second replication. The record fails to set out the demurrer to the fifth plea, and there is nothing to show upon what ground's this demurrer
Demurrers were filed to the third and four pleas setting up a want of consideration in the notes sued on, but as the record fails to disclose any judgment by the court on these demurrers we must decline to notice them. The only recital in the record as to any judgment on these demurrers is as follows: “Come the parties and the demurrers to pleas 3, 4, and 5 are heard and overruled.” This is nothing more than a mere note or memorandum of the action of the court. It has been several times recently decided by this court, that a mere recital in the record that the demurrer was overruled does not show that consideration and determination by the court necessary to constitute a judgment by the court . — Cartlidge v. Sloan, 124 Ala. 596; McDonald v. Ala. Midland R'y. Co., 123 Ala. 227, and cases there cited.
On account of the conflict in authorities as to the extent of conclusiveness of a former judgment between the same parties in a subsequent suit for a different cause of action, but involving issues which could have been properly pleaded and adjudicated in either suit, the determination of the question raised by plaintiff’s replication, numbered two, has not been free from difficulty. In this replication, the plaintiff replies as a bar, or, rather as an estoppel, to the defenses set up in the third and fourth pleas, the recovery of a judgment by the plaintiff for accrued interest on the notes here sued on, and it is averred that it is provided ih the body of said notes that the interest on the same shall become due and payable in annual installments. From the aA'erments contained in the replication, it is manifest that a judgment in the former suit, pleaded as an estoppel, could not luwe been obtained Avithout offering in evidence the identical contract here sued upon. The evidence necessary to sustain the former action is contained in the same writing as is the evidence necessary to sustain the present action. Interest is but increment of principal, and without principal there can be
In Freeman on Judgments, § 259, it is said: “The best and most invariable test as to whether a former judgment is a bar, is to inquire whether the same evidence will sustain both the present and the former action. If this identity of evidence be found, it will make no difference that the form of the two actions is not the same. * * * Whatever be the form of action, the issue is deemed the same whenever it is in both actions supported by substantially the same evidence. If it be so supported, a judgment in one action is conclusive upon the same issue in any other suit, though the cause of action be different.” Citing among other cases, Cannon, v. Brame, 45 Ala. 262. In Strauss v. Meertief , 64 Ala. 310, it was said by this court in an opinion by Buiokeel, C. J.: “A judgment, as between parties or privies, as a plea or bar, or as matter of evidence, is conclusive, not only of the questions actually litigated, but of all questions within the issues which could have been properly litigated and determined;” citing Trus
In Liddell v. Chidester, 84 Ala. 508, where tlie question was whether Chidester was employed by Liddell to perform, a year’s service for $1,000, to be paid in gross, or in monthly installments, there having been a previous suit by Chidester and a recovery of a judgment. against Liddell for a month’s installment, the court said: “If, on the other hand, the wages were due- and demandable at the end of each month, then the recovery, of one installment, unreversed, is a complete answer;-to and preclusion of defenses to the merits which were or-could be pleaded to such second suit;” and it was fur-, ther said by the court (and it may be remarked here that this was a -case where the former judgment was pleaded as a bar), that “the first suit was brought on the theory that the contract was payable in monthly installments, and it was indispensable to plaintiff’s right of recovery [that is, in the first action] to show that by the terms of the contract his wages were due in monthly installments, one installment of which had matured. This was essential to the finding of the former verdict. The foregoing facts are placed beyond .dispute in the record before us. They estop Liddell from denying that by the terms of his contract with Chidester he was to pay the wages in monthly installments, and that he discharged plaintiff without cause.”
An examination of the above cited cases will disclose, either that the second suit was for the same cause of action sued on in the former suit in which the judgment pleaded was rendered, or where the cause of action in the second is different from that sued on in the former, that the issues involved in the second suit, were either actually litigated, or within the litigation, in the former ; or in other words, that a contest was had between the parties in the former, and that the questions involved in the second suit were either litigated in such contest, or were 'within the issues litigated.
In the case of Liddell v. Chidester, supra, an examination of the original transcript and record; shows,
The question involved in this case was decided in the casé of Cromwell v. County of Sac. 94 U. S. 351, and the principle is well stated in the first head note to that case, as follows: “The difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action, is, that in the former case, the judgment if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as tó any other admissible matter which might have been offered for that purpose. But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.” See Cromwell v. County of Sac., 94 U. S. 350; Nesbit v. Riverside Independent Dist., 144 U. S. 619; Davis v. Brann, 94 U. S. 423; Jacobson v. Miller, 41 Mich. 90; Freeman on Judgments, (4th ed.) § 253, p. 453, and § 330, p. 603; 1 Van Fleet’s Former Adjudication, § 219, pp. 523-5.
In the case at bar the judgment pleaded as an estoppel was taken by default in a suit on a cause of action different from the one here sued on. The judgment in the former suit being by default, no contest was had, and consequently no issues were litigated. This being-true, the judgment pleaded could not operate as a bar or as an estoppel in the second suit. There'was no error in sustaining the demurrer to the replication, and the judgment of the court below must be affirmed,
Affirmed.
