73 Miss. 542 | Miss. | 1895
delivered the opinion of the court.
The appellant exhibited his bill in the chancery court of Adams county, by which he seeks to vacate a certain judgment at law recovered against him in the circuit court of Adams county by the appellee, and for a new trial of the matters involved in that suit. From a final decree denying relief and dismissing his bill the complainant appeals. The bill alleges that the judgment at law was secured in the absence of counsel complainant had employed to represent him; that his counsel had removed from the state, leaving his unfinished business in the care of an attorney, Mr. Winchester, who went to Guatemala in September on business of great importance, expecting to return before the November term of the court, but died from sudden sickness, about November 1, 1893; that his death was not known in Natchez until November 15; that the November term of the circuit court began on the thirteenth of November, and on the fourteenth a judgment was taken against
The complainant avers that he has and had a meritorious defense to said action at law, consisting of these facts:
On the seventh day of October, 1891, the defendant sued the complainant and the firm of Rucks & Dunbar, composed of H. T. Rucks and R. F. Dunbar, and R. F. Dunbar individually, in the circuit court of Adams county. The said suit was on a lost bill of exchange, an alleged copy of which was filed with the declaration, and which was as follows:
“$1,500. Greenville, Miss., August 1, 1889.
‘ ‘ Ninety days after date pay to our own order fifteen hundred dollars, and charge to account of Rucks & Dunbar.”
Written across the face of the paper were the words: “Accepted. George F. Greene,” and indorsed on the back the names “Rucks & Dunbar,” “R. F. Dunbar.” To this action Greene pleaded by an unsworn plea that he had never accepted the bill of exchange in the declaration mentioned, and also that he was bound on said bill only as accommodation acceptor, and that Rucks & Dunbar had, before the institution of the suit, fully paid the sum thereby secured.
On these issues a trial was had, resulting in a verdict and judgment in favor of Greene. Rucks & Dunbar and R. F. Dunbar made no defense, and judgment by default was taken against them. After the rendition of this j udgment — viz., on November 25, 1891 — the defendant brought a second suit against Greene, as acceptor, and against R. F. Dunbar as drawer and Rucks & Dunbar as indorsers; that to this action Greene pleaded non assumpsit and also res judicata, setting up the proceedings and judgment in the first action, and averring that the cause of action in the two suits was the same, and the defendant filed a replication of nul tiel record. The complainant alleged, as a further ground of defense to said suit at law,
To maintain his bill the complainant took the deposition of R. P. Dunbar, who testified that, in the first action at law, he was examined as a witness, and, among other matters, 'had then testified that the lost acceptance upon which the action was brought was signed by himself, individually, as drawer, and not by the firm of Rucks & Dunbar; that he sent the bill to Greene, who accepted and returned the same to him, and he then indorsed his own name and that of his firm on its back and delivered it to the Merchants’ & Planters’ Bank, which discounted the bill and applied its proceeds according to his instructions. He further states that he testified that the bill accepted by Greene had been fully paid. He also says that, on that trial, the officers of the bank and the attorney to whom the acceptance had been sent for suit, and who lost or mislaid the bill, testified that the bill was drawn by the firm of Rucks & Dunbar, and not by Dunbar individually, and the officers of the bank denied that it had been paid. In addition to the defense that the matters involved in the second suit at law were adjudicated in the first, the complainant further avers that, in fact, the bill of exchange had been fully paid by Rucks & Dunbar.
It is conceded by counsel for appellant that, to entitle him to relief in equity, he must show (1) that the judgment at law was secured by fraud, accident or mistake; (2) that appellant was not guilty of neglect in defending; (3) that he has a meritorious defense.
We will consider the defenses to the suit at law which are relied on by the appellant. If they are not meritorious, no other question need be discussed. As we have said, these defenses are (1) res acbjudieata, (2) payment.
Counsel makes some contention as to the pleadings in the suits at law, which we dispose of with a few remarks. In the
To the second suit no plea of payment was interposed and hence the appellee contends that, as the complainant, as defendant in that suit, would not have been permitted to introduce evidence of payment, he cannot, in this proceeding, show the fact of payment as constituting a meritorious defense to that action. But, in view of the course of the litigation and of the fact that, in the first action, payment was relied on by the defendant, we think the plaintiff would not have been taken by surprise by an application of the defendant for leave to plead payment, which leave, we think, the court would undoubtedly have granted.
We think the case should be considered as though, in the first action, the defendant had pleaded non est facbwm and payment, and in the second non assmnpsit, res adjudicate and payment.
If the first suit had been upon the original bill of exchange, there would be no difficulty in determining whether the judgment in favor of the defendant was upon the plea of non est factum or that of payment, for, upon inspection of the bill, it would have appeared whether it was the one described in the declaration or not, and the court would have admitted it in evidence if it conformed to the declaration, and thus have submitted practically but one issue to the jury — that on the plea of payment; or would have excluded it if it did not conform to the one described in the declaration, and thus have put an end to the suit. But the bill had been lost, and the suit was upon what was alleged to be a copy, and whether it was or was not a true copy was disputed, and this controversy could only be settled by the verdict of the jury.
The complainant does not aver that the bill of exchange accepted by him was in fact drawn by Bucks & Dunbar, and that
The insuperable difficulty of maintaining this contention is, that, neither by the averments of his bill nor by his evidence, is it made to appear that there was identity either of causes of action or of issues in the two suits. In dealing with the difficult and technical subject of estoppel by record, we are admonished by the great volume of what has been written by judges to confine our remarks to the precise questions presented. There are certain fundamental rules applicable to the case as made by the bill, which are conclusive against the claim of the complainant that the matters involved in the second suit were adjudicated in the first.
In the first place, looking at the records in the two cases, we see that the causes of action are not the same, and, though it is not always essential to estoppel by record that there should be identity of causes of action, the exceptions are where the second suit is upon a part of an indivisible right or demand, a part of which was involved in the former adjudication (Corbet v. Evans, 25 Penn. St., 310; Farrington v. Payne, 15 Johns., 432), or where the specific facts or questions have been determined in a former suit (1 Howell on Estop., § 98, and authorities cited in note 1; Cromwell v. County of Sac, 94 U. S., 351; Bigelow on Estop., 83; Duchess of Kingston’s Case; 2 Smith’s Ldg. Cas., 784). And the test in this class of cases is whether the evidence which would support the one case would sustain the other. Bigelow on Estop., 79; Steinbach v. Ins. Co., 77 N. Y., 498; Riker v. Hooper, 35 Vt., 457.
We are of opinion that no payment in fact of the sum secured by the bill of exchange is established. Rucks & Dunbar were continuously indebted to the bank after the maturity of the bill. They continued to make deposits on their general account, and to draw against the same, until their failure in business. They gave no check to the bank for the amount of the bill, and it is not pretended that it was ever charged up to them on the books of the bank or on their pass book. Mr. Dunbar, it is true, testifies that he instructed the officers of the bank to apply his deposits to the payment of the bill, but this fact is denied by them. It is unquestionably true that Rucks & Dunbar at no time had any sum standing to their credit on the books of the bank which could have been applied to the payment of the bill. The effort now is to have the deposits made by the firm from time to time, and which were continually drawn out in the course of business, applied to the .bill of exchange, and pay
The decree is affirmed.
delivered the following response to the suggestion of errror:
We fear that counsel has not carefully read the record and the opinion of the court, as to which he suggests error. Neither in the first nor second suits at law was there a valid plea of non est factum, for in neither was the plea sworn to. Code of 1880, § 1633. But as the plea in the first action was treated by the parties as a plea of non est factum, and as their rights could only be fairly considered by so regarding it, we dealt with it as the parties had. But, since the whole course of the litigation showed that the appellant always insisted that the bill of exchange described in the second suit at law was the one he did accept, we gave to the plea in that action its legal technical effect.
Counsel is in error in his statement that the court has mistaken the facts appearing in' the record. We know more of the record than counsel does. On page 73 the witness, Dunbar, states that, on the first trial, he heard Dr. Walker, the president of the bank, testify, and that he said that he knew nothing of the deposits made being special ones against the fifteen hundred dollar draft, and that Robertshaw, the cashier, had not
Suggestion of error overruled.