Foster v. Napier

73 Ala. 595

Opinion

BBICKELL, C. J.-

— Pleadings, in civil actions at common law,, are amendable at any time while the cause is in progress; at any time before the rendition of final judgment, for until then the proceedings are said to be in fieri. — McBrayer v. Cariker, 64 Ala. 50; Burkham v. Mastin, 54 Ala. 122. If the matter of the amendment is proper, the pendency of pleas in bar. or in abatement, the legal, effect of which the amendmént may obviate, is rather a reason for than an objection to its allowance. In Crim v. Crawford, 29 Ala. 623, it is said: “ Our statute of amendments is very liberal, and is indicative of a legislative intent, that no mere mistake of the pleader, as to the allegations necessary to make a cause of action complete, shall defeat the suit.- .... There is no limit to the power of amending the allegations of a complaint, except that a party should not be allowed to depart in the complaint entirely from the process; or to substitute an entirely new causé of action, or to make an entire change of parties. Either of these things would be tantamount to the institution of a new suit, and would not be an amendment of the old cause of action.” The rule is simple and clear; there has been in the subsequent decisions of this court no departure from it; and yet there seems to be found much of difficulty in its practical application, for questions touching the amendment of complaints are constantly arising, and are of frequent presentation here for revision.

The original complaint contained three counts, each averring as the cause of action, the same tort, a malicious prosecution of the plaintiff for a criminal offense. The first and second counts averring the commencement of the prosecution before a justice of the peace, its continuance in the circuit court, by indictment presented by a grand jury, and the acquittal of - the plaintiff. The third is general, averring only the issue of the warrant by the justice, thé arrest and imprisonment of the plaintiff, and the determination of the prosecution by his discharge, describing the same offense as the subject of the prosecution. The amendment which was allowed was the insertion of two additional counts, and the striking out of the first count of the original complaint. The tort alleged in the additional counts is the same tort alleged in the original complaint- — it is not another distinct tort, and is not of consequence a different cause of action, or a new cause of action. The 'plaintiff could not, under the additional counts, offer evidence of any matter or ground of recovery, which was not within the cause of action stated in the original complaint. "Whether there was a necessity for the introduction of the counts, it is not necessary to consider. They were introduced, doubtless, to adapt the complaint to the various shapes or phases in which the pleader apprehended the evidence might present the case. Amendments of this character, working no other change than in the description of the cause of action, are admissible, so long as the identity of the matter upon which the.action is founded is preserved;

The. pleas in abatement are directed to the whole complaint; they profess to be in abatement of the action as an entirety; and not in abatement of one ór more of the several counts of the complaint. The rule applicable alike to pleas in abatement, and to pleas in bar is, that the plea must answer all that.it proposes to answer; and if it be not an answer to the extent that it professes, on demurrer, it must be adjudged bad. — 1 Obit. PI. 476; 2 Brick. Dig. 348, §.301. If, as was adjudged on demurrer by the court below, the pleas were good as to all the counts of the. complaint, except the first additional count introduced by the amendment, and their insufficiency for this reason was assigned as a cause of -demurrer, there was error in sustaining the demurrer in part and overruling'it in part; the demurrer should have been sustained, and the pleas adjudged bad. This is not, however, an error available to the defendant, for it is not of injury to him, unless the pleas were sufficient to abate the count as to which they were overruled.

The -matter of the pleas is the pendency of a prior action between the same parties, for the same cause or matter, in a court of competent jurisdiction. The principle is well settled, that the pendency of a prior suit for the same thing, or, as is generally said, for the same cause of action, in a court of competent jurisdiction, between the same parties, will abate a later suit; because the latter is deemed unnecessary and vexatious. Bullock v. Perry, 2 St. & Port. 319; McCutchen v. McCutchen, 8 Port. 151; Gaston v. Parsons, Ib. 469; Dean v. Massey, 7 Ala. 601; Boswell v. Tunnell, 10 Ala. 958; Rood v. Eslava, 17 Ala. 430; Humphries v. Dawson., 38 Ala. 199. The reason of the principle is well expressed in the familiar maxim : “ Nemo debet bis vexari, si constet cioriie quod sit pro una et eadem causa.” The doctrine is thus stated in 1 Bac. Ah. 28, M.: “The lawT abhors multiplicity of actions; and, therefore, whenever it appears on record, that the plaintiff has sued out two writs against the same defendant, for the same thing, the second writ shall alíate; for if it were allowed that a man should be twice arrested, or twice attached by his goods for the same thing, by the same reason he might suffer m infinitum; and it is not necessary that both should be pending at the time of the defendant’s'pleading in abatement; for if there was a writ in being at the time of suing out, the second, it is plain the second was vexatious and ill ab initio.” It is the pendency of two suits for the same cause, their existence simul et semel, the law deems vexatious and discountenances. However meritorious may be the cause of action, it must not be employed for the purpose of Oppression; and when a defendant is twice impleaded by the same -plaintiff, for the same thing, the oppression and vexation is not matter of fact; it is a conclusion of law, and is not dependent upon an inquiry into the actual circumstances of the two cases. — Parker v. Colcord, 2 N. H. 36; Com. v. Churchill, 5 Mass. 174; Beach v. Norton, 8 Conn. 74; Frogg v. Long, 3 Dana, 157; Gamsby v. Ray, 52 N. H. 513. The plea of the pendency of a prior action for the same cause, between the same parties, stands upon like principles, and is supported by like evidence, as a plea of a former recovery. The two pleas have not the same, but a like office; the difference is, that the one is interposed because of the pendency of the first'action, the other after its termination ; the one is in abatement of the second suit, the other in bar, to defeat it absolutely. The plea is not, therefore, available, unless the judgment which could be rendered in the prior action would be conclusive between the parties, and operate as a bar to the second. — Rood v. Eslava, 17 Ala. 130; Newell v. Newton, 10 Pick. 470.

The first suit was, like the second, an action on the case for a malicious prosecution of the plaintiff for a criminal offense ; the same offense in each complaint is averred or described as the subject of the prosecution, arid in each the prosecution is averred to have been commenced on the same day, before the same justice of the peace, and in each a termination of the prosecution, by the discharge or acquittal of the plaintiff, is averred. The difference in the averments of the two complaints is, that two of the counts of the second complaint aver that the prosecution was commenced before a justice of the peace, continued in the circuit court, and there terminated in an acquittal. And in another count, there is an omission of all reference to the proceedings before the justice of the peace, and an averment only of the prosecution by indictment in the circuit comí, and its termination.

It is apparent that both Suits grew out of the same transaction ; that the same tort, or wrongful act constitutes the substantial cause of action in each suit. According to the averments of the several complaints, the tort was complete, and there was the concurrence of every fact essential to the maintenance of the action. An action for malicious prosecution can be maintained only when three facts or things’ co-exist. 1. The prosecution must have been ended. 2. The termination must have been .an acquittal, or discharge of the plaintiff. 3. The charge must be proved to have- been made through malice, and without reasonable or probable cause to believe it true. The concurrence of these facts the complaint in each action avers. But it is insisted that, upon an inspection and comparison of the records, it. appears from the averments of the complaint in the second action, that the averment of the termination of the prosecution made in the first action is untrue in point of fact; that the prosecution was not ended, the cause of action had not accrued, and of consequence that action was premature, would have proved ineffectual, and is not pleadable in abatement of the second suit.

The proposition proceeds upon the hypothesis, that the defendant would make defense to the first suit, and that the defense would not be on the merits, but would be rested on the ground of its premature commencement. If he had not made defense, or if he had not taken special objection, that the suit was prematurely commenced, a judgment against him would not have been reversible on error. A judgment in an action prematurely commenced, even when the fact is apparent on the face of the complaint, if objection is not taken in the primary court, is-not reversible on error. — Mahoney v. O’Leary, 34 Ala. 97. And in an action for malicious prosecution, an 'insufficient averment of the termination of the prosecution, or an omission to aver the fact, if not objected to by demurrer, is cu'red by verdict. Skinner v. Gunton, 1 Saunders, 228; Cotton v. Wilson, Minor, 203. The falsity of the averment of the termination of the prosecution made in the first action could have' been shown only by extrinsic evidence. It was matter of defense; there was the necessity for defense, unless the defendant was willing to submit to two judgments for the same wrong. The necessity was imposed by the act of the plaintiff; and the necessity is the oppression and vexation, against which the law intends to guard and protect the defendant. If the fact be, that the first suit was prematurely commenced, that was a reason for its discontinuance or dismissal. It is not a reason for multiplying suits against the defendant for the same wrong; the deficiencies of the first were not corrected by the second suit; and if it be defective, it is the fault of the plaintiff, not of the defendant. If the second suit should for any cause be found defective, and for that reason, if defended, would prove ineffectual, a third could be brought, and suits multiplied in infinitum. The-grievousness of the oppression would be more apparent,' if successive attachments were issued ■ against the estate of the defendant, each issued because of defects, real or imaginary, in its predecessors. The estate would be burdened with several levies, and the defendant driven to the defense of suits, which, if not unnecessary, were rendered necessary only by the fault of the plaintiff. The oppression differs only in degree, not in character, when the suits are commenced by summons, personally served.

There are authorities,-to some of which we have been referred by the counsel for the appellee, holding that a prior suit which can not be made effective and available, is not pleadable in abatement of a second suit for the same cause. The doctrine is inconsistent with the English authorities, seems to have originated in the courts of Connecticut, and has been adopted by the courts of several States. The authorities were thoroughly considered, and the question ably discussed by the Supreme Court of New Hampshire in Gamsby v. Ray, 52 N. H. 513, and the doctrine repudiated. If it be admitted, and it must be, that the principle is founded upon the-policy of discouraging a multiplicity of suits- — of protecting the defendant from oppression, from the grievance of double vexation for the same cause or thing, there can be no inquiry, whether the prior suit is capable of being prosecuted by the plaintiff to a successful issue, if it is resisted by the defendant. Unless the suit is commenced in a coiirt without jurisdiction, or the process upon which the validity of the proceedings depends, is upon its face void, the defendant is compelled into double litigation, and into the peril of double judgment. “ A series of suits, pending at one time for one cause,” say the Supreme Court of New Hampshire, “ ineffectual so far as giving the plaintiff judgment is concerned, may be an effectual persecution of the defendant; and permitting the defendant to be harassed by such suits and the maintenance of the last one, would encourage arid cultivate a want of due care in making the first one effectual.” Whether the prior suit is capable of being made effectual, is, in the second suit, a collateral, incidental inquiry; however it may be tlien decided, the defendant is not by its decision relieved of its burdens; there is a continuing necessity that he should remain before the court, prepared to make defense against it. These are, in our judgment, the evils against which the principle is directed. There can be no necessity for the institution or the pendency of two suits for the same matter at the same time. The security of the plaintiff can not require it. If the prior suit is defective, and must prove ineffectual, the statute authorizes its dismissal in vacation.- — Code of 1816, § 3025. And it is far .better that the plaintiff should be required to enter the dismissal, than that he should be permitted to keep it alive, though confessing that finally it must prove ineffectual. ■

The next contention is, that the second suit is for the prosecution in the circuit court, not for the prosecution before the justice, which must be regarded as the cause of action, or the matter of the first suit. The proceedings before the -justice were only initiatory of the prosecution; they were but the first step in the course of the proceedings, which make up the prosecution. True, if there had been a discharge of. the plaintiff by tlie justice, and no indictment subsequently preferred, the ■discharge would have been a termination of the prosecution, entitling the plaintiff to sue, if the prosecution was malicious and without probable couse. — 1 Am. Lead. Cases, 277. An indictment was subsequently preferred — it was but a continuation -of the prosecution commenced before the justice — it was not a new or distinct prosecution. As causes of action, torts are as indivisible as contracts. It is not permissible to separate them into parts, bringing one action for one part, and another action for another part.' — O’Neal v. Brown, 21 Ala. 482; Crips v. Talvande, 4 McCord, 19; Sheldon v. Carpenter, 4 Coins. 578. And if a plaintiff should sue but for a part, the judgment operates as a merger of the right of recovery for the tort in its entirety .-. — Freeman on Judgments, § 241. -A judgment rendered in the first suit on the merits would have operated a bar to the second, in any aspect of this case. For there was but one, indivisible cause of action; but one tort, for the commission of which there could be but one recovery of damages.

The result is, the circuit court erred ,in not overruling the demurrer to the pleas, and in not rendering judgment on the replication of nul tiel record, abating the action. As this result is decisive of the case, it is not necessary 'to consider the other questions raised by the assignments of error.

Be versed and remanded.