67 Ala. 164 | Ala. | 1880
— In January, 1877, suit was instituted by the appellee against the Mobile & Montgomery Railroad Company. Process was served on George Nason, as general agent for the said defendant company.
Upon the trial of the cause an appearance was entered, and a defense of the action was made by the appellant, who pleaded under the corporate name and style of the Mobile & Montgomery Railroad Company. Demurrers were interposed and appear upon the record in the name of the appellant, and both demurrers and pleas style the said raikoay company to be “ the defendant ” in the suit. The evidence shows that the attorneys, who defended the suit, were employed and paid by the M. & M. Railway Company, and the said George Na-son is shown to have held the same office under both companies, and process was served on him as agent in the present suit, as well as in the one against the M. & M. Railroad Company. There is no evidence which tends to prove that this appearance and defense were made without unmistakable authority on .the part of the counsel. On April 12, 1878, judgment final was rendered against said Mobile & Montgomery Railroad Company, upon which execution issued with a return of “ no property found.” On February12.J.879. this suit against appellant was brought -rlgment,. which is averred in legal effect tobgr^Tjudgment agaii^ ^10
We think the facts of this case work an estoppel on the appellant. The pleadings, which substantially aver the appellant to be the real and true defendant, who was erroneously ■sued under another name, constitute a solemn or judicial admission of the identity of the two corporate companies, the Mobile & Montgomery Railroad Co., and the Mobile & Montgomery Bailway Co. Such' admissions in judicio, made solemnly and deliberately in the course of the regular proceedings in a court of justice, are the highest substitutes for so many proofs of fact, and are binding conclusively on parties and privies. Res judicata inter partes jus facit. 'The question is not whether there is an actual identity of parties, but simply whether there is a conclusive admission of such identity, which precludes a subsequent denial of it, or repudiation of its truth. — 1 Greenl. Ev. §§ 27, 205, 22.
The admission has, furthermore, been acted on by the plaintiff in the judgment, who might otherwise have amended his pleadings or dismissed and recommenced his action as circumstances required, and the law permitted. Good faith and a sound public policy now forbid that he shall be prejudiced by any attempt to gainsay or deny what has been thus solemnly admitted.
The record, unaided by extrinsic proof, might be conclusive, but there was no error in sustaining the record by parol evidence. This is not a contradiction, but a verification of the record. Even where the proceedings fail to set out or show the true name of a litigant, the better doctrine seems to be that parol evidence is admissible to establish the fact, that the parties in two separate suits are really, though not nominally, the same. Such seems to be the doctrine very clearly enunciated by this court in Tarleton v. Johnson, 25 Ala. 300. So it has been held that the record of a judgment against James B. is admissible in an action .against Joseph E., if it is made to appear that the latter was the same person, and was a party to the suit, and actually defended it. — Stevelie v. Read, 2 Wash. Cir. Ct. Rep. 274.
The law very properly protects certain professional communications between attorney and client as confidential, on. grounds of public policy. This does not apply to matters openly communicated or disclosed in the presence of third parties, and it has often been decided that an attorney may be required to disclose by whom he is employed in a judicial
It was a matter of discretion with the lower court to permit the plaintiff’s counsel to close the argument after the refusal of the defendant’s counsel to address the jury, and such action is not revisable on error.
The charges requested by appellant’s counsel are plainly incompatible .with tbe above views, and were properly refused.
The other rulings of the court on the admission of evidence were error without injury, if error at all. The result of the suit, as affirmatively shown by the record, could not possibly be affected by them, and they are therefore no grounds for reversal. — Lyles v. Clements, 49 Ala. 445; Grubbs v. Railroad, 50 Ala. 398.
Tbe judgment of the City Court is affirmed.
