Firemen's Insurance v. Cochran & Co.

27 Ala. 228 | Ala. | 1855

BICE, J.

The truth of pleadings is usually established by a verdict. Yet the truth of pleas is as well established by the plaintiff’s interposing a demurrer to them, and declining to reply when his demurrer is overruled and leave given him to reply, as by a verdict finding them to be true. — 1 Greenlf. Ev. § 27.

When several pleas are pleaded, each of which goes to the whole declaration, and the plaintiff’s demurrer to them is overruled, with leave to him to reply, which he declines to do ; the judgment on demurrer will not be reversed if any one of them is good. — Barber v. Dixon, 1 Wilson’s R. 44; 6 Com. Dig. tit. Pl. (S. 19); Puckett v. Pope, 3 Ala. 552 ; Winston v. Moseley, 2 Stew. R. 137. It will therefore be our duty to affirm the judgment in this case, if any one of the pleas demurred to is good.

The complaint of the plaintiff shows that the conversion of - all the notes and bills therein mentioned was a single act. It avers only one conversion. Taking the complaint and the pleas demurred to together, the plain construction of the pleadings is, that the transfer of the notes and bills by Greene' to the defendants was a single transaction, and is the conversion complained of by the plaintiff. — McCombie v. Davis, 6 East’s R. 538 ; Harker v. Dement, 9 Gill’s R. 7.

Although this transaction between Greene and the defendants amounted to a conversion, and was liable to be defeated by the plaintiff ;• yet it was such a transaction as was capable of acquiring validity from the subsequent confirmation of the plaintiff with a knowledge of the facts. The confirmation of the plaintiff might be direct and express, or implied from its conduct and acts. By taking judgment against S. G. & S. W. Cochran, two of the members of the firm sued in the present action, as garnishees, and coercing and receiving the money from them as garnishees, with a knowledge that part of their indebtedness to Greene admitted in their answer to the garnishment was' on account of the notes and bills for the conversion of which this action was brought, and that said indebtedness was the balance due by them to Greene on account of the transfer by him to them of these identical notes and bills, — the plaintiff admitted the validity of (and confirmed) the transaction by which they acquired the notes and bills from Greene, so far as the defendants are concerned, and in law waived its right to enforce a claim for damages, in an action of trover against the defendants, for that transaction. — Butler v. O’Brien, 5 Ala. 316 ; Sheppard v. Buford, 7 Ala. 90; Moseley v. Wilkinson, 24 ib. 411; Rotch v. Hawes, 12 Pick. R. 136 ; Hewes v. Bagley, 20 ib. 90 ; Southard v. Pope, 9 B. Monroe, 265.

A proceeding by garnishment is a suit. It may well be classed with actions ex contractu, because it lies only to subject those demands for which the debtor of the plaintiff in the garnishment could maintain debt or indebitatus assumpsit. Lundie v. Bradford, 26 Ala. 512 ; Cook v. Walthall, 20 ib. 334. The plaintiff, in the first instance, with knowledge of the tort by Greene, elected to sue him in assumpsit for the amount of the bills and notes, and in that-suit recovered their full amount. The plaintiff next elected, during the pendency of that suit, and as ancillary thereto, to sue out against Greene an attachment, and to have S. G. & S. W. Cochran summoned as garnishee; and on their answer the plaintiff obtained judgment,"and received the money, part of which it knew at the time to be due by them to Greene for these notes and bills. The plaintiff, after having made its election as aforesaid, brought this action of trover. The plaintiff is concluded by having made its election before this suit was commenced, with knowledge of the facts, from maintaining the present action, which is inconsistent and incompatible with, the former remedies to which it resorted. — Rawson v. Turner, 4 Johns. R. 469 ; McElroy v. Mancius, 13 ib. 121; Buckland v. Johnson, July No., 1854, of the Monthly Law Reporter, 167.

We are-aware, that there is a class of cases where the party bag concurrent rom eclies for the same cause of action against several persons, and, maycarry his several proceedings to judgment, though lie is limited to one satisfaction. Bat in such cases the cause oFaction is the saüe, and accrues ¿gainst all'at the-same time, and the concurrent remedies are perfectlyconsistent and compatible" with each other. The election and confirmation of the plaintiff, above mentioned, takes this suit out of the rule which governs that class-of cases. Rawson v. Turner, supra; Spivey v. Morris, 18 Ala. 254.

It is an undoubted rule, that one cause of action cannot be split up or divided into several. This rule applies, as well when tile entire claim could not have been recovered in the •first suit, as when it could have been recovered. — O’Neal v. Brown, 21 Ala. 482 ; Farrington v. Payne, 15 Johns. R. 432 ; Philips v. Berick, 16 ib. 136. The plaintiff avers and shows but one cause of action — to-wit, the,transfer of the notes and bills by Greene to defendants. That transfer is the conversion averred in the complaint. In the garnishment suit, the plaintiff has already had one recovery _ arising out of that transfer, as above shown. Now, if it be conceded that in that suit the plaintiff did not recover, and could not have recovered, all it was originally entitled to, that concession does not abrogate the rule which forbids the splitting up of one cause of action. — Philips v. Berick, supra.

The fifth plea (which consists of all the averments contained in the second and fourth pleas and an additional averment) is clearly good ; and the judgment is affirmed.