110 Tenn. 263 | Tenn. | 1903
delivered the opinion of the Court.
Complainant rented to the defendants a house in Memphis, to be occupied by them as brokers and commission merchants. Some, time after defendants took possession and moved their stock of • merchandise into
Tbe defendants sued tbe complainant, Taylor, in tbe circuit court of Shelby county, to recover the damages sustained by them by the falling of tbe floors; and, no defense being made, judgment by default was taken, and upon writ of inquiry tbe damages of tbe plaintiffs were found to be $1,148.50, for which a final judgment was entered.
Complainant then brought tbe case before this court by writs of error and supersedeas, and assigned as error tbe action of tbe circuit judge in executing tbe writ of inquiry without tbe intervention of a jury — one having been demanded in tbe declaration — ■ which assignment was overruled, and tbe judgment affirmed against him and bis surety upon bis superse-deas bond. This case is reported in 108 Tenn., 719, 69 S. W., 266.
Thereupon this bill was brought, charging that tbe summons in tbe action of Sledge, Wells & Co. against Taylor was not served upon complainant Taylor; that tbe circuit court did not have any jurisdiction of bis person, and that tbe judgment recovered against him was for this reason absolutely void; also that tbe collapse and falling in of tbe floors of the bouse
Tbe defendants', answering, say that tbe complainant was served with process in tbe original case, but that tbe question is not now an open one, as be entered bis appearance and submitted to tbe jurisdiction of tbe court when be sued out writs of error and supersedeas and bad tbe case reviewed by this court, and that -tbe former case involved tbe same subject-matter as this one, so far as tbe complainant seeks to recover damages for injuries done his bouse; and they plead tbe judgment in that case in bar of this part of tbe relief sought against them. Thus two questions of law are presented, the determination of which must be conclusive in this cause.
1. Did tbe complainant, by suing out tbe writs of error and supersedeas in tbe case of Sledge, Wells & Co. against Taylor, enter bis appearance in that case, and submit to tbe jurisdiction of tbe court? We bold that be did. He bad tbe election of two remedies to correct any error committed against bim. If there was error in tbe face of tbe record, be could bave tbe judgment reversed upon writ of error from this court. If there
We are, therefore, of the opinion that the complainant entered his appearance in the former case when he sued out the writs of error and supersedeas; that this court thereby obtained jurisdiction of his person, and its judgment against him is valid and conclusive of the matters therein adjudged, although the original summons may not have been served upon him. There does not seem to be any reported case of this court deciding this precise question, but there are some involving analogous questions which support this decision, so far as they bear upon this case. Palmer v. Malone, 1 Heisk., 549; Woolridge v. Boyd, 13 Lea, 151; Hurt v. Long, 90 Tenn., 448, 16 S. W., 968. The chancellor also found,
2. The second question to be determined is whether the case of Sledge, Wells & Oo. against Emmett Taylor involved the same subject-matter as this case, so far as complainant seeks to recover damages against the defendants for injuries to his storehouse, and, if so, whether the judgment in the former case is res adjudicates of these matters, and a bar to such relief. There can be no doubt but that the same facts and questions involved in the former case must be the subject of adjudication in this one; but the complainant insists that .the judgment in that case, being by default in the circuit court, is not res adjudicata of any claim and rights he may have, growing out of such matters, and does not bar him from a recovery on account of the same against the defendants. The case of Sale v. Eichberg, 105 Tenn., 333, 59 S. W., 1020, 52 L. R. A., 894, is relied upon to support this contention. A judgment by default is as conclusive against the parties as one rendered in a case where the defendant appears and makes defense of all material matters that are properly pleaded and averred in the declaration.
The rule is clearly stated by an eminent author in these words: “A judgment taken by default is conclusive by way of estoppel in respect to all such matters and'facts as are well pleaded and properly raised, and material to the case made by declaration or other plead
The other assignments of error were disposed of orally; The decree of the chancellor will be modified to conform to this opinion.