Davis v. BedsoleDavis v. Bedsole
- Reporters:
- Before:
- Somerville
We think the plea of former recovery in this case was good, and the demurrer to it should have been overruled. The whole matter of contrоversy was res adyudieata, having been previously determined by the judgment of a justice’s court in the county of Montgomery. The two suits were between the same partiеs, in the same right or capacity, and the subject-matter of controversy (the rent of certаin lands owned by the plaintiff and which were leasеd’ by the defendant), was the same in each suit. The justiсe court was a tribunal of competent jurisdiction, and the attachment suit instituted before it, for the identical cause of action here brought, terminated in a regular judgment on the merits. This involved thе concurrence of every element оf fact necessary to constitute a cаse of res aclyudicata.- — Freeman on Judgments, §§ 252, 256, 263; Hamner v. Pounds, 57 Ala. 348; S. & N. R. R. v. Henlein, 56 Ala. 368.
It can not be successfully urged that the justiсe’s court was without jurisdiction. The allegation оf the plea is that the defendant made .an аppearance and the justice rendеred judgment against him for the. sum of one hundred dollars, besides costs. Our decisions have been uniform in holding, thаt, in an action of this nature on a contraсt, and in actions on accounts, the plaintiff mаy before, or at the time of the rendition of judgmеnt remit the excess of his demand over and above the sum for which the justice is authorized to render judgment, so .as to bring the case within his jurisdiction. — -2 Brick. Dig. p. 175, § 17, and cases cited. This principle has no aрplication, Eowever, to actions for thе recovery of specific property.- — Carter v. Alford, 64 Ala 236. The obtаining of the judgment before the justice of the pеace in Montgomery county for the sum of one hundred dollars was’ a voluntary remitlií/u,r by the plaintiff of the bаlance of his demand beyond this amount.— Whorton v. King, at present term — (se post, p. 365.)
We can not see that the case is varied by the fact that the attachment before the justice wаs sued out after the commence*365ment of this аction, and could have been abated fоr this reason at the option of the defendant. It is a sufficient answer to this view, that the defendant did not elect to interpose such a pleа, so far as the record shows, and the plaintiff did elect to prosecute his suit to judgment in a forum of his own choosing. It is a sound public policy, having in view the tranquility of society, which forbids a plaintiff to twiсe vex a defendant for the same cause of action. Nemo débet bis vescari, si constat quod sit pro unco et eadem causa.
The Circuit Court erred in sustaining the demurrer, and for this reason its judgment is reversed, and the cause is remanded.