Florence Cotton & Iron Co. v. Louisville Banking Co.

138 Ala. 588 | Ala. | 1903

SHARPE, J.

By execution on a judgment recovered by Fields against this plaintiff, defendant as assignee of the judgment collected money. Subsequently the Supreme Court reversed the judgment and remanded the cause, whereupon Fields dismissed the suit. Plaintiff brought this suit for the money it paid on the judgment. The complaint consists of three counts, the first declaring on an account, and the second for money had and received for plaintiff’s use. The third count was upon special facts, and a demurrer thereto was sustained. It is unnecessary to review the ruling on this demurrer since the second' count was adapted to a full presentation of plaintiff’s case. Before the final disposition of the third count, there was filed a number of special pleas, all of which were stricken cut except those numbered respectively, 6, 12, 13, and 18, each of which set up as a defense the existence of the debt claimed by Fields in the first suit.- These pleas, we construe, as having been interposed to the third count alone. The disposition of that count under the demurrer had the effect to eliminate .these special pleas, but for the purpose of this review we will treat the plea of the general issue which was interposed to the whole complaint as available for any defense which could properly have been based on injustice of the plaintiff’s claim.

The authorities generally sustain the proposition that where payment has been coerced on a judgment which is afterwards reversed, the party paying has prima facie, a right to restitution of the money. Some cases elsewhere, and in some of the earlier cases in this court including Duncan v. Ware, 5 S. & P. 119; Dupuy v. Roebuck, 7 Ala. 486, which were referred to in Crocker v. Clements, Admr. 23 Ala. 307, seem to indicate that under such facts, the further fact that the debt claimed in the original suit was due, may be shown in defense of an action of assumpsit brought for the money paid. This view, however, is inconsistent with other authorities. In Carson's Admr. v. Suggett's, Admr., 34 Mo. 364, which case Avas in the main like the present, the decision is expressed in the head note as follow's: “Where the judgment of the inferior court is reversed by the Supreme Court, the plaintiff in error or the appellant, is to be restored to all that he has lost by the original judgment, and this without any reference to the rights of the plaintiff in the original suit. Where the plaintiff, after the reversal of the judgment in his favor, voluntarily dismissed his suit, and the defendant sued for restoration of Avhat he had lost by the judgment, an ansAver setting up the original claim of the plaintiff Avas properly stricken out.” In Bickett v. Garner, 31 Ohio State, 28, it was held in an action on a restitution bond for money paid on a judgment afterAvards reversed, that the claim on avMcIi the original action was brought could not be made available as an offset by dismissing the original cause of action or otherAvise. Many authorities by making general affirmation of the right to restitution indicate that such right is absolute. See Ex parte Walter Brothers, 89 Ala. 237; Marks v. Cowles, 61 Ala. 299; Freeman on Judgments, §§ 481, 482; Freeman on Executions, § 347; Bank of U. S. v. Washington, 6 Peters, 8; Ranck v. Becker, 13 Serg. & R. 41; Clark v. Pinney, 6 Cowan 297; McJilton v. Lore, 13 Ill. 486; Reynolds v. Hosmer, 45 Cal. 616; Fish v. Toner, 40 Minn. 211 ; 41 N. W. Rep. 972.

In Ex parte Walter Brothers, supra, the question arose in the chancery court Avhich had undoubted jurisdiction to determine it on equitable principles; and this court said Avith reference to a party who had enforced the collection of money on a decree thereafter reversed: “He had no right to the money involved in the litigation in contemplation of law until there should be a correct determination of the matters in dispute, however clear his rights may have been in point of fact. He, therefore, proceeds with the cause having an undue advantage of his adversary and is in fact in the attitude.of having joined what he claimed before his right to it had or could have been determined. We entertain no doubt, therefore, of the absolute, right to have restitution made on the one hand and the absolute correlative duty to make restitution on the other, wholly regardless of considerations looking to the final equities of the parties.”

We adopt this latter expression as applicable to this case and accordingly hold that the existence of the debt claimed by Fields in the suit he dismissed is not a defense to this suit, and this without regard to the merit of the suit, or Ho the question discussed by counsel of whether the dismissal operated as a retraxit.

To the extent that it accepted the benefit of the execution defendant must be held to have ratified the act of Fields’ attorneys in enforcing the same though it may not have otherwise participated in the enforcement of the judgment. As assignees of the judgment it is in no belter situation to defend than Fields -would have been had he recovered the money and been sued therefor.— Freeman on Judgments, '§ 483; Reynolds v. Hosmer, supra; McJilton v. Love, supra.

The judgment of the circuit court will be reversed and one will be here entered for the amount collected by defendant out of the money paid by plaintiff on the execution, viz., $4,000.00, with interest thereon from the 13th day of November, 1894; that being the time when the rigid to restitution accrued by the reversal of the judgment. íáee as to the time of such- accrual Crocker v. Clements, supra.

Beversed and rendered.