113 So. 16 | Ala. | 1927
The suit is on two promissory notes by the payee against the maker.
The cause was tried on plea of discharge in bankruptcy, replication thereto setting up a new promise, and plea of res adjudicata. The court, sitting as a jury, rendered judgment for the defendant.
An action may be maintained upon the original notes or other cause of action, or upon the new promise after bankruptcy. If brought on the original cause of action, a plea of discharge in bankruptcy need not set up that the debt was scheduled. Exceptions from the effects of a discharge, if not shown on the face of the complaint, must be set up by replication. B. F. Roden Groc. Co. v. Leslie,
Plea C, res adjudicata, sufficiently alleges a former suit by the same plaintiff against the same defendant, on the same notes here sued upon in a court of competent jurisdiction, and judgment for the defendant. It is defective in failing to sufficiently set out the issues presented by plea in legal effect so as to show the judgment was upon the merits. A judgment for the plaintiff in an ordinary action at law imports a finding on the merits, adjudicates a liability, but a judgment may go for the defendant on many grounds without coming to an issue on the merits. The plea avers in general terms the same matters have "been heretofore adjudicated," etc. But it should have set forth the issues as appearing from the pleadings or judgment, at least, in legal effect. Jones v. Russell,
The original complaint in the former suit, with official indorsements thereon, and the original minute entry of the judgment were admissible the same as certified copies thereof. Code of 1923, § 7719, subd. 6.
The judgment disclosed on its face that it went for the defendant on his plea of discharge in bankruptcy. In connection with proof of identity of parties and cause of action, it was conclusive that the discharge was effective to and including that date, January 16, 1923. In the absence of a new promise thereafter, it was a complete bar to the suit.
The suit being on the original cause of action, a new promise must be set up by replication. Torry v. Krauss,
Where, as here, there was direct conflict between the parties as to whether defendant had made a new promise after his discharge in bankruptcy, declarations of the defendant to a third person, to the effect that he intended to pay the debt, would be a circumstance tending to indicate a sense of obligation to pay after discharge, and admissible not as a new promise, but corroborative of plaintiff's evidence that he did make a new promise.
But the question to witness I. T. Jackson, "Did he ever tell you he was going to pay?" was too general, not limited to any time after bankruptcy. The same witness, referring to a special conversation, did testify that defendant told him he intended to pay Nix this debt, and objection was overruled.
Affirmed.
SAYRE, GARDNER, and BROWN, JJ., concur.
