110 So. 46 | Ala. | 1926
Phases of the controversy arising out of the subject-matter of this suit are Allison v. Cody,
The recognized distinction between a mortgage and a pledge was made in Crowson v. Cody,
The rules for accounting are considered in Crowson v. Cody,
The appeal is from a decree sustaining demurrer to the bill, and there were many grounds assigned. The court below did not designate the grounds of demurrer sustained. Where there are several grounds of demurrer, some of which are sufficient, and the judgment or decree sustaining demurrer is general, the ruling will be referred to a ground that is well taken. Nat. Park Bk. v. L. N. R. R. Co.,
In Richard v. Steiner Bros.,
"The rule of practice as declared by our decisions is that, on an appeal from a decree sustaining or overruling a demurrer to a bill in equity, the decree will be referred to the causes of demurrer which will support it, and not to those which would render it erroneous, working a reversal. McDonald v. Pearson,
See, also, Kinney v. Reeves,
The foregoing rule was followed in Nat. Park Bk. v. L. N. R. R. Co.,
The many questions are presented by the demurrers to the bill as a whole and to each of said portions and phases thereof; among other grounds, that of res judicata, concluding as follows:
"At most the only equity in the bill is for an accounting, but it cannot be maintained so long as it is incumbered by the inapt allegations therein as to other matters and relief, as pointed out in Crowson v. Cody,
To the bill as amended respondent refiles each and every ground theretofore filed and assigned "as fully in all respects as if the same were here set out in extenso," and —
"(3) It appears that the matters set forth in said amendment are included in and covered by the matters already litigated in the former case of J. C. Crowson v. Michael Cody et al., referred to in the original bill filed in this case.
"(4) The allegations of said amendment are not such as would justify the court in requiring any discovery or disclosure on the part of the defendant."
The dismissal of a bill after demurrer sustained and for the failure to amend within the reasonable time given by the court for that purpose performs the effect of a final decree on the merits, and is the foundation for demurrer or a plea of res judicata. Code 1923, vol. 4, p. 916, rule 28; East v. Saks,
In Stein v. McGrath,
The rule on sustaining demurrer is understood as not precluding a proper and timely attempt to restate the cause of action. 13 A.L.R. 1104. Such was the treatment of the pleading sought to be defeated by the estoppel set up in Gilmer v. Morris (C. C.) 30 F. 476. However, the rule in this jurisdiction is that, where the pleading was heard on demurrer, and it is ordered that the same be dismissed, unless amended within a given and reasonable time, so as to make the pleading good and sufficient in law, the judgment containing such declaration of insufficiency and allowance of time is not final upon the merits, and the whole pleading is within such time open to due amendment, and a subsequent demurrer challenging that right in the same case will be overruled, if the pleading as a whole sets forth a good cause of action.
The courts differ as to whether the amendment is to be made in the same suit or by new procedure. 13 A.L.R. 1115. The latter course was sanctioned by the District Court in Gilmer v. Morris (C. C.) 30 F. 476, s. c. 46 F. 333. It may not be out of place to say of the procedure in that case that it was where the pledge declared upon was at a different time and of a different nature, alleged to be a different cause of action. 46 F. 333 That suit in the state court by Mr. Gilmer was based on the pledge of 1871, and the bill did not allege recognition of the pledge on the part of Mr. Morris from that time to the filing of the bill in the state court in July, 1884, testimony taken, and decree dismissing the bill affirmed. Gilmer v. Morris,
The ascertainment of a final decree (de Graffenried v. Breitling,
It should be added that the estoppel must be mutual and equally binding on all persons having an adverse interest. Phillips v. Thompson, 3 Stew. P. 369; Gwynn v. Hamilton's Adm'r,
It has been admitted that res judicata may be insisted upon by demurrer if the facts sufficiently appear on the face of the pleading. Clark v. Whitfield,
The rule stated by the district judge in Gilmer v. Morris (C. C.) 30 F. 476, is contrary to our decisions. Fahey v. Esterly Mach. Co.,
Where the issues were broad enough to comprehend all that was involved in the issues of the second suit, the test is, not what the parties actually litigated, but what they might or ought to have litigated. This is necessary to a due observance of the rule against splitting the cause of action (McNeil v. Ritter Dental Mfg. Co.,
In McNeil v. Ritter Dental Mfg. Co.,
"A judgment or decree of a court of competent jurisdiction is res adjudicata and a bar to the maintenance of a subsequent suit, when it is pleaded and ascertained that the subject-matter of said suit is the same embraced or presented under issues in the former suit broad enough to have comprehended all that is involved in the issues of the second suit — not what was actually litigated, but what might and ought to have been litigated in the former suit, is the test."
In the application of this rule it will be noted that in this jurisdiction, and by the Supreme Court of the United States, the holding is that a judgment rendered upon sustaining demurrers admitting the facts is conclusive, by way of estoppel of such facts sufficiently pleaded and confessed, the same as a verdict and judgment thereon finding the said facts would have been. This is only true where the demurrer goes to the merits, showing that the same were heard. Walden v. Bodley, 14 Pet. 156,
The application of this rule is often difficult. Let us observe how the Supreme Court of the United States has done this, without treating the different means or grounds to reach the same result as material and sufficient to defeat the estoppel. Mr. Justice Holmes said:
"In the former suit the appellants alleged the same descent, but instead of alleging express and solemn recognition of Ramon by Salvador as his natural son, sought to have him declared such, and therefore entitled to inherit one-half of Salvador's estate. Its immediate object was to establish filiation by ajudgment, while the immediate object here is to nullify a will.
The theory put forward was so far different that, unless the complaint in this case had been interpreted as alleging a recognition in solemn form, it would have been held bad on its face. In the former suit also the mother was alleged to have been a slave. But these differing allegations are simplydifferent means to reach the same result — the possession by Ramon of the rights of a natural son; and the evidence offered in this case like the allegations in the former one was only of private acts. In these circumstances the true principle has been declared by this court to be that a judgment or decree bars all grounds for the relief sought. Northern P. R. Co. v. Slaght,
In United States v. California O. Land Co.,
"Here the plaintiff is the same person that brought the former bill, whatever the difference of the interest intended to be asserted. See Werlein v. New Orleans,
"* * * But the whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time. He cannot even split up his claim (Fetter v. Beale, 1 Salk. 11; Trask v. Hartford N.H. R. Co., 2 Allen [Mass.] 331; Freeman, Judgm. 4th Ed. §§ 238, 241); and, a fortiori, he cannot divide the grounds of recovery."
In Northern Pac. R. Co. v. Slaght,
"Is the decree in the suit res judicata? Against this effect of the decree the railway company urges that it was rendered on demurrer, and 'the estoppel extends only to the very point raised in the pleading, and does not bar another action based upon other facts.' The effect of the decree, it is insisted, was only to decide against the title specially set forth in the pleading. And further, 'in this action (that at bar) the right asserted is a perpetual easement or way by virtue of the act of 1875 through the lands involved in the former suit. Not only was this right not pleaded in the former complaint, but under it the title now asserted could not have been proved.' To sustain these conclusions the following authorities are cited: Wiggins Ferry Co. v. Ohio M. R. Co.,
"The citations are not apposite to the present controversy. * * * The question as to such judgment when pleaded in bar of another action will be necessarily its legal identity with suchaction. (Italics supplied.) The general rule of the extent of the bar is not only what was pleaded or litigated, but what could have been pleaded or litigated. There is a difference between the effect of a judgment as a bar against the prosecution of a second action for the same claim or demand and its effect as an estoppel in another action between the same parties upon another claim or demand (Cromwell v. Sac County,
"In United States v. California O. Land Co.,
In Dowell v. Applegate,
"* * * Our attention is called to the case of Cromwell v. Sac County,
In Yates v. Utica Bank,
The former decisions in Crowson v. Cody,
"* * * The only equity in the bill of complaint is theequity to an accounting. In order to maintain the bill for that purpose, it must be, by appropriate amendment, disincumbered of other inapt allegations and purposes; and in those parts which seek to falsify the settlement note the allegations must be amended to meet the requirements above stated, or they must be stricken from the bill." (Italics supplied.)
There was failure of compliance by due amendment after opportunity given in that case, and a decree of dismissal was affirmed in
Analogous to the procedure in federal court in Gilmer v. Morris, supra, by separate bill an "accounting between mortgagor or pledgor and mortgagee or pledgee" is sought in the instant suit on grounds or items indicated in the former suit to amend by separate bill after former dismissal and appeal and affirmance. This is contrary to the rule obtaining in this jurisdiction.
This court will judicially notice issues presented in another case on its appeal. Cogburn v. Callier,
In both suits were propounded interrogatories for discovery and as aid to an accounting as to the facts of the joint adventure and that res was drawn within the issues of the said respective pleadings. Each suit had for its object the same accounting, to relieve from all interest because of usury, for the opening of the former settlement evidenced by the note for $16,500, etc., to canvass the redemption from foreclosure by first mortgagee, to secure credit for profits from the joint adventure, to secure credit for the other property, charged in first bill, as that which Cody has which is "not mentioned in said mortgage as security for his indemnity," and which "he has not accounted for," and to require Cody to account for properties sold and for rents received from the Clarke county lands. Both pleadings contained special prayers looking to reduction of complainant's indebtedness to Cody and to secure from the latter the difference between that indebtedness and the present value of the mortgaged or pledged property; and both bills set up the same transactions or joint adventure effected by the several prayers for relief. The equity of the former bill was challenged by demurrer confessing the facts and going to the merits of the respective phases thereof. The two bills had the one object, which was the same, though the grounds or means to reach the same result were different. In each set of averred facts and under each prayer of the two bills the respective allegations are "simply different means to reach the same result" (Fugurul v. Rivera,
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur. *157