| Ala. | Jan 15, 1840
Lead Opinion
— On the application of the defendant below, in a previous suit between the parties to this suit, the court ordered a new trial to be granted, unless the plaintiff in that case, who was also the plaintiff below, in this, would enter a remittitur, as to a part of his recovery in that action. The order of the court was to this effect: “That unless the plaintiff (now de
Pursuant to this order of the court, the plaintiff remitted all his damages but three hundred dollars; and the question is, whether the remittitur so entered, will preclude the plaintiff below from maintaining this action, which is brought for the value of the corn.
It is a settled rule of law, that no one shall be permitted to litigate the same matter twice. If the question be submitted to a jury, no matter how insufficient the evidence may have been to maintain the issue, no action can afterwards be brought for the same demand. The question in such cases always is, whether the matter in controversy was a part of the plaintiff’s demand in the former suit, and submitted to a jury. (Brockway v. Kinney; 2 Johns. Rep. 210: Seddon v. Tutpot; 6 Term. Rep. 607.)
This case, however, differs from the common question of a former recovery. Here, there is no doubt that the matters controverted in this suit, were submitted to the jury, who tried the former suit between the same parties: but the order of the court, directing a new trial to be granted, unless the plaintiff remitted all the damages which the jury rendered for the present cause of action, certainly places this question in an entirely new aspect.
The reason of the rule, above stated, fails entirely in such a case as the present; for surely, the remittitur entered, by direction of the court, is entitled to the same weight, as the voluntary entry of a nolle prosequi, before a verdict.
It may be said, that the remittitur was the voluntary act of the party making it; but we consider, that, in effect, it was done at the instance of the defendant, in the first case. By his application for a new trial, he impliedly, in advance, consented to such terms, as the court should impose. The court direct, a
To permit the plaintiff in error now to say, that there has been a former trial of this cause, would be doing the greatest injustice;- and as no authority has been produced, sanctioning such a principle as the one now contended for, we are constrained to think, that the law is correctly laid down by the Circuit Court, that under the circumstances, the remittitur forms no bar to this ac~ tion.
But in deciding, that there could not be a verbal submission to arbitration, of a matter not in litigation, the eourt erred.
It is probable that the court, in its judgment, was influenced by our statute relating to awards: (Aik. Dig. 31.) A submission to award, at common law, may be either by “word or deed,’r (Bacon’s Ab., title, Abitrament and Award,) and we are very clear, that it was not the intention of the' Legislature, in the act referred to, to abolish, or in any manner to interfere with awards at common law. The manifest object of the Legislature, was to encourage the settlement of controversies, in this cheap and friendly mode, by giving an effect to an award made in the mode pointed out by the statute, which it would not have at common law; but no conceivable reason can be assigned, why the Legislature, should have deprived the citizen of his right, to settle a controversy by arbitration, in the mode known to the common law.
The charge of the court, therefore, “that a verbal submission toabid'e by the award of arbitrators, was not binding, unless assented to, after the award was made,” was wrong. The charge should have been, that, if the jury believed, from the evidence, that there was a submission entered into by the parties, to abide the award of arbitrators, touching the matter in controversy, in this suit, the award made, pursuant to such submission, there being no revocation of the authority previous to the making of
It is true, that an award may be impeached for matters dehors the submission; such, for example, as gross misconduct in the arbitrators; fraud; want of notice of the time of making the award, &c. No question of that kind appears to have been raised upon this award, in the court below.
For this error, the judgment must be reversed and the cause remanded for further proceedings, in conformity with this opinion.
Dissenting Opinion
dissentiente-1. It is not necessary, in order to perfect the bar to a second action, that the plaintiff^should actually have recovered what was sought by the first; ort hat a judgment recovered in the first, should have been satisfied. If it appears from the declaration, that the subject of the second action could have been adjusted by the first, and that the saíne proof might have been, and was adduced, the bar is complete. A recovery in a former action, apparently for the same cause, is only prima facie evidence that, the matters litigated in the subsequent action, have been tried; but is not conclusive. Thus in Seddon v. Tutpot, (6 T. R. 607,) which was an action of assumpsit for goods sold, there was a plea of former recovery, and a replication that the promise in the last suit was not the same promise, for the non-performance of which, a sum of money was recovered in the former action. Upon the trial it appeared that the former suit was upon a promissory note, and for goods sold; and upon the execution of the writ of inquiry, the plaintiff not being prepared with proof, as to the goods sold, took an inquisition for the amount of the note only, and brought a new suit for the goods sold. Upon these facts the court of King’s Bench ruled that the former recovery was no bar.
In Brockway v. Kinney (2 Johns. Rep. 210,) the plaintiff declared for work and labor in burning three hundred bushels of lime. The defendant pleaded non assumpsit, and gave notice that he should prove, that the plaintiff had before sued him for djie same matter, and had recovered. On the trial, it was proved
In the case at bar, the defendant in error, in the former suit, submitted to the jury the several matters embraced in his declaration, and obtained their verdict for the same cause, for which the present action is brought. Upon motion for a new trial, on the ground that the verdict was contrary to law and evidence, the court ordered that a new trial be granted, unless the defendant in error remit all his damages but three hundred dollars ; . — the court considering the excess to have been assessed for the corn mentioned in the declaration, and stating that if he remitted, that no part of the damages should be understood to be given for the corn. It is possible that the court, in thus framing the order awarding a new trial, intended to prevent the verdict from operating as a bar to a subsequent action for the corn, the defendant in error having failed to sustain that part of his demand.
It was competent, as we have seen, for the defendant to have entered a nolle prosequi, as to a part of his demand, before trial: but it was not allowable after having proceeded to trial, and obtained a verdict, then to enter a remittitur as to a part, and bring another action. There was nothing obligatory in the order of the court; the defendant had his option, either to remit, or submit his case to another jury: by adopting the former part of the alternative, he consented to waive a trial, and in my judgment the former trial and verdict operates a complete bar to the present action.
By adopting a different form of action, a party cannot avoid the effect of a former trial. The true test (as it was ruled in Kitchen v. Campbell, 3 Wils. Rep. 304.) by which it may be determined whether a former verdict and judgment is a bar, is, whether the same evidence, will support both actions. It seems not to have been contended in the circuit court, that a recovery could not have been had for the corn, in the action of assumpsit — the court placing the rejection of the evidence, on the ground alone, that after the former trial, a new trial was awarded, unless
It is not intended to intimate, that a conditional order for a new trial is not regular, as there can be no doubt of its regularity if assented to. I only desire to be understood as saying, that the order made in the former suit, cannot impair the defence set up in the present case.
There can be no doubt, the pleas interposed by the plaintiff in error, will admit the defence on which he relies. In assumpsit and trespass on the case, as usually understood, proof of a former trial, or a former trial and recovery, is clearly admissible, under the general issue of non assumpsit, or not guilty. And that such proof may be given under the general issue in trover, seems necessarily to follow from analogy — but this point need not be determined, as there is a special plea in the record, adapted to the proof.