Dunlap v. Edwards

29 Miss. 41 | Miss. | 1855

Mr. Justice HaNDY

delivered the opinion of the court.

This was an action in the circuit court of Clarke county, to ' recover the amount of two promissory notes made by the plain.tiff in error to the defendant in error. The defendant below pleaded, first, that he did not owe the sums of money demanded, and second, that at the April term of said court, 1850,, the plaintiff had sued him in an action of assumpsit, founded on the same identical causes of action here sued on, amongst others, and that at October term, 1850, said plaintiff recovered judgment against the said defendant for the sum of $121.63, which remained in full force. To this second plea, the plaintiff replied that the promissory notes here sued on, are not the same cause of action upon which judgment was recovered in the previous action ; and further, that the defendant, with a full knowledge that said judgment was not rendered for the same cause of action here sued on, afterwards promised to pay the notes here sued on to the plaintiff.

On the trial, the plaintiff offered in evidence the two notes sued on, one for $200, and the other for $225.

The defendant then introduced and read the writ, declaration, and judgment in the former action, by which it appeared that that suit was founded on three promissory notes, one for the sum of $101.88, and two others, being the same sued upon in this action; that the defendant withdrew his plea, and that judgment was rendered for the sum of $121.63. It also appeared that a motion was made by the plaintiff at October term, 1851, to correct the judgment; which motion was overruled.

The plaintiff then proved that, subsequently to these proceedings, the defendant had acknowledged that there was a mistake in the original judgment, by which the notes here sued on were omitted, and that he had promised to pay the amount to the plaintiff’s agent or attorney.

The verdict and judgment were for the plaintiff, for the amount due the plaintiff, and which was not embraced in the former judgment.

The first question is, whether, under the state of facts presented by the record, the former judgment was a bar to the recovery in this case.

In order to give such an effect to a former judgment, it is necessary not only that the action should be founded on the same cause of action embraced in the former suit, but that the cause of action in the second suit was embraced in the judgment rendered in the former action. This was the issue presented by the replication to the second plea; and it is well settled that it was competent to show that the cause of action of the second suit was not embraced in the former judgment. 2 Saund. PI. & Ev. 260, title Judgment Recovered; Seddon v. Tutop, 6 Term R. 608; Hitchen v. Campbell, 2 W. Black. 831; Com. Dig. Action, (L. 4.)

The second question is, whether the attorney who brought the original suit was a competent witness for the plaintiff in the second action, to show that the defendant had admitted the mistake in the original judgment and promised to pay the amount due the plaintiff. It appears that this witness had given a receipt to the plaintiff for one note for collection, and was responsible to that amount. But it did not appear that that was one of the notes sued for in this action ; nor, but that it was the note upon which the former judgment had been rendered and which was paid. In this uncertain state of the evidence in relation to his interest, we cannot say that the court erred in holding him' to be competent.

Several of the instructions given at the instance of the plaintiff, and refused on the part of the defendant, are alleged to be erroneous; and some of them are probably not correct as legal propositions. But the principal point of controversy was properly submitted to the jury, and the evidence shows that it was clearly in favor of the plaintiff. And the rule is, that the verdict will not be disturbed when it is according to the law and justice of the case, though the instructions be erroneous.

The judgment is affirmed.