Hale v. Goodbar, White & Co.

81 Ala. 108 | Ala. | 1886

STONE, C. J.

— This was a second application made to the judge of the ninth judicial circuit, for the supersedeas and quashal of an execution. Under the petition first filed a trial was had, and the court denied all relief to the petitioners, and dismissed their petition. There was no appeal from that judgment, and the same remains in force. It is not denied in this application that the trial then had was upon the merits. The petition now before us sets forth the foregoing facts, and admits the parties and the subject-matter in that case and in this are the same. It offers as an excuse for not appealing from the decision, a failure to obtain a bill of exceptions through no fault of petitioners, as it is alleged. The excuse can not avail. If the petitioners, within the time agreed on, presented to the presiding judge a correct bill of exceptions, and he failed or refused to sign it, the statute furnishes the means of establishing it in this court. — Code of 1876, § 3111; Judge v. The State, 58 Ala. 402; Posey v. Beale, 69 Ala. 32 ; Blake v. Harlan, 75 Ala. 205.

In this case, as shown by the petition itself, th.6 parties are the same, the subject-matter the same, and the identical point directly in issue in each. No question arising as to jurisdiction, the defense of res judicata must prevail.— Gil-breath v. Jones, 66 Ala. 129 ; McCall v. Jones, 72 Ala. 368; Herman Bes judicata, §§ 99, 338, 340; Hanchey v. Croskey, 81 Ala.

Affirmed.