Hopkinson v. Shelton

37 Ala. 306

Opinion

A. J. WALKER, C. J.

Under our system of pleading,, which allows the filing of a- plurality of pleas, it is no objection, that a special plea, presents matter of defense available under the general issue, which is also pleaded. — Dunham v. Riddle, 2 St. & P. 402. Code, § 2237 Pamphlet Acts of 1853 — 54, p. 60. The refusal of this court to-reverse, on aceount of the erroneous sustaining.of a demurrer to. a plea, where the general issue was pleaded, and the defense might have been made under it, is put, not upon 'the ground that the special plea was-objectionable, but that no injury resulted from the erroneous action, of the court. Rogers v. Brazeale, 34 Ala. 512. There is a common-law rule, “that: where a plea amounts to the general issue, it should be so pleaded but it is probable that the enforcement of that rule was discretionary with the court. — Stephens on Pl. 419-422, ch. 2, § 6. It was no valid objection to the second plea, that it amounted to the general issue.

[2.] The third plea, setting up a former recovery, does not show that the cause of action in the two suits was the same. The cause of action in this case, is the conversion of the cattle mentioned. The cause of action, alleged to have been the basis of the former recovery, is the sale of the same cattle by the defendant as sheriff. It is not averred, that the conversion, for which this suit was brought, was identical with the sale, for which the -other 6uit was brought. There may have been an actionable conversion altogether distinct from the sale. The court-erred in overruling the demurrer to this plea.

[3.] The main question before, us is, whether -the recovery of nominal damages, in the case of Hophinson and Sheppard v. Shelton, (the decision of which in this court is reported, under the title of Sheppard v. Shelton, in 34 Ala. p. 632,) is a bar to this suit, when it -is shown that'the conversion of cattle for which this -suit is brought was effected by. the levy upon the same by the defendant, as sheriff under fieri facias against Sheppard alone, and the subsequent sale of the same under the execution j and that such sale was the sale for the making of which the former suit was brought by the plaintiff and Sheppard, they being joint owners of the cattle! To determine this .question, it is necessary to ascertain what is the legal cause of action in this suit. The sheriff, having an execution against Sheppard alone, had authority to levy on the cattle, which were the joint property of the defendant in execution and the plaintiff in this case, and to bold' possession of the-samo until the sale. — Andrews v. Keith, 34 Ala. 722 ; Moore v. Sample, 3 Ala. 319 ; Winston v. Ewing, 1 Ala. 129. The cause of action in this case, therefore, is not a conversion produced by the levy, taking and retaining of the property up to the sale. The sheriff’s conduct was legal, up to the time of sale. A sale of the entire property, under an execution against one 'of the joint owners, would render the sheriff a trespasser as to the joint owner who was not a defendant in the execution ; and this is the cause of action, which would accrue to the plaintiff upon the facts stated in the question above propounded. — Sheppard v. Shelton, 34 Ala. 652 ; Smyth v. Tankersley, 20 Ala. 212.

If the wrongful sale of the property was the cause of action in the former suit, and a recovery was thereupon had, it is a bar to this suit. It can make no difference, that the form of action was different. — Starkie on Ev., part 2, p. 198; Tarleton & Pollard v. Johnson, 25 Ala. 300 ; Langdon v. Raiford, 20 Ala. 532. Npr does it affect the question, that, in strictness of law, the plaintiff’s right could not have been property adjudicated in the former action, if it was in fact set up and passed uporvin a court of competent jurisdiction, at the,plaintiff’s instance. — Tarleton & Pollard v. Johnson, supra. Nor does it make the former suit less effective as a bar, that in it the court, by an erroneous ruling, diminished the plaintiff’s recovery down to merely nominal damages. — Smith v. Whiting, 11 Mass. 445; Planter v. Best, 11 Johns. R. 530 ; Philips v. Berick, 16 Johns. R. 136; Brockway v. Kinney, 2 ib. 210.

'•The cause of action in the former suit was the sale of the entire property in the cattle, by virtue of process against one of the owners, and at a place not authorized by daw. The charge of the court authorized a finding by the jury of the damage resulting from such sale, but required a deduction from the damage of so much of dhe proceeds of-sale as was paid over on the execution by the sheriff; and instructed the jury, that, if the property sold for as much as it would have sold for at a place prescribed by law, and the proceeds of the sale were all paid over on the execution, then they must find nominal damages for the plaintiff. The jury found nominal damages. The court also refused to separate Hopkinson’s interest from that of the defendant in execution, and allow a recovery of his damages. We think, that the plaintiff’s damages, resulting from the sale, alleged to have been wrongful for the two reasons — that the entire property was sold under an execution against one owner, and that the sale was at a wrong place — were considered and adjudicated; and that, under the charge, those damages were reduced to a nominal amount, because the property sold for its value, and the proceeds of the sale were paid over on the execution. The plaintiff cannot again., have. his- claim for damages on account of the wrong-fab sale adjudicated and if this suit-be-for the same- salé, it is barred by the former judgment.. And npomthe principles stated above, this case is not relieved from > the bar, because the form of action in the-former suit was different ; nor because the action was not* in strictness of law, maintainable ; nor because the court, in> the former case, erroneously ruled, that the plaintiff’s-damages were subject to reduction to a nominal sum.

We have adopted what we conceive to be the prima-facie ■ construction of the record in the former suit. We do not-consider, for we do not think it necessary, whether parol proof would be admissible to-, show- that, in fact, the-subject-matter of this suit-was. not-adjudicated.

We do not: deem it' necessary to decide any- other ques-tion in the case.

Judgment-reversed, and cause remanded