Moody v. Atkinson

Supreme Court of Alabama

Moody v. Atkinson

51 So. 621, 165 Ala. 299, 1910 Ala. LEXIS 57

DecidedFebruary 8, 1910

StatusPublished

This text of 51 So. 621 (Moody v. Atkinson) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moody v. Atkinson, 51 So. 621, 165 Ala. 299, 1910 Ala. LEXIS 57 (Ala. 1910).

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Opinion

DOWDELL, C. J.

— This is a statutory action of ejectment. It has been repeatedly said by this court that the plea of not guilty is the only appropriate plea in ejectment; but there is another well-established rule, which is that the parties may frame the issues to suit themselves, and, having done so, will he held to the consequences.

In addition to the plea, of not guilty, the defendant filed special pleas. To some of these pleas, demurrers were filed; but it does not appear from the judgment entry that any action was taken by the court on these demurrers, and from this it will be presumed that they were abandoned. Issue was joined on the special pleas. Some, of these special pleas were proven without conflict in the evidence, and this entitled the defendants to the general charge as requested. It can make no difference as to results whether the pleas are material or immaterial, when issue is joined on them.

It requires two judgments in favor of the defendant in ejectment, between the same parties or their privies, in which the same title is put in issue, to bar an action. —Code 1907, § 3858. The record shows that in the second ejectment suit between the plaintiff, Atkins, and T. J. Moody, through whom these defendants claim title, T. J. Moody filed a plea of disclaimer, and judgment was rendered for him on this plea. This was not such a judg[302]*302ment in ejectment in his favor, within the meaning of the statute, -as would constitute one of the two judgments requisite to bar an action.

In the chancery proceedings introduced in evidence it appears that the decree in favor of T. J. Moody on the cross-bill filed in that proceeding by Atkins, the plaintiff here, was rendered upon issue joined on an immaterial plea, without testing its sufficiency, filed by the defendant T. J. Moody in the cross-bill, and which was established. So it affirmatively appears that the merits of the case as to the validity of the title under the mortgage on which the plaintiff here bases his right of recovery were not determined. Hence the decree in that case, on the doctrine of res judicata, could not operate a bar in the present action.

For the error indicated in the refusal of the general charge to the defendants, the judgment must be reversed, and the cause remanded.

Reversed and remanded.

Simpson, McClellan, and Mayfield, JJ., concur.

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DOWDELL, C. J.

— This is a statutory action of ejectment. It has been repeatedly said by this court that the plea of not guilty is the only appropriate plea in ejectment; but there is another well-established rule, which is that the parties may frame the issues to suit themselves, and, having done so, will he held to the consequences.

In addition to the plea, of not guilty, the defendant filed special pleas. To some of these pleas, demurrers were filed; but it does not appear from the judgment entry that any action was taken by the court on these demurrers, and from this it will be presumed that they were abandoned. Issue was joined on the special pleas. Some, of these special pleas were proven without conflict in the evidence, and this entitled the defendants to the general charge as requested. It can make no difference as to results whether the pleas are material or immaterial, when issue is joined on them.

It requires two judgments in favor of the defendant in ejectment, between the same parties or their privies, in which the same title is put in issue, to bar an action. —Code 1907, § 3858. The record shows that in the second ejectment suit between the plaintiff, Atkins, and T. J. Moody, through whom these defendants claim title, T. J. Moody filed a plea of disclaimer, and judgment was rendered for him on this plea. This was not such a judg[302]*302ment in ejectment in his favor, within the meaning of the statute, -as would constitute one of the two judgments requisite to bar an action.

In the chancery proceedings introduced in evidence it appears that the decree in favor of T. J. Moody on the cross-bill filed in that proceeding by Atkins, the plaintiff here, was rendered upon issue joined on an immaterial plea, without testing its sufficiency, filed by the defendant T. J. Moody in the cross-bill, and which was established. So it affirmatively appears that the merits of the case as to the validity of the title under the mortgage on which the plaintiff here bases his right of recovery were not determined. Hence the decree in that case, on the doctrine of res judicata, could not operate a bar in the present action.

For the error indicated in the refusal of the general charge to the defendants, the judgment must be reversed, and the cause remanded.

Reversed and remanded.

Simpson, McClellan, and Mayfield, JJ., concur.

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Bluebook (online)

51 So. 621, 165 Ala. 299, 1910 Ala. LEXIS 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moody-v-atkinson-ala-1910.