Opinion
8 Div. 948.
May 12, 1927.
Appeal from Law and Equity Court, Franklin County; B. H. Sargent, Judge.
Jas. L. Orman and H. D. Jones, both of Russellville, for appellant.
Plea C is not sufficient as one of res adjudicata. Glasser v. Meyrovitz, 119 Ala. 152, 24 So. 514. Plaintiffs should have been allowed to offer statements made by defendant to third persons, to the effect that he intended to pay the notes sued on as corrobating plaintiffs' evidence of a new promise to pay. 7 C. J. 412; Torry v. Krauss, 149 Ala. 200, 43 So. 184. The new promise may be made before as well as after discharge. Griel v. Solomon, 82 Ala. 85, 2 So. 322, 60 Am. Rep. 733. The original papers in the former suit were not admissible in evidence. 22 C. J. 800; Spence v. Tuggle, 10 Ala. 538; Sandlin v. Anderson, 76 Ala. 403. Only a final judgment as to same parties, same subject-matter, and on the merits of the controversy can be res adjudicata. McCall v. Jones, 72 Ala. 371; 7 C. J. 412.
Stell Quillin, of Russellville, for appellee.
Plea C met all the requirements, and was not demurrable. House v. Donnelly, 7 Ala. App. 267, 61 So. 18; Drinkard v. Oden, 150 Ala. 475, 43 So. 578; Robinson v. Windham, 9 Port. 397; Evans v. McMahan, 1 Ala. 45. When the promise to pay the debt is made the promisee must be present to accept the promise to pay after bankruptcy. 7 C. J. 413; Smith v. Stanchfield, 84 Minn. 343, 87 N.W. 917; Int. Harvester Co. v. Lyman, 90 Minn. 275, 96 N.W. 87. The original papers in the former case were admissible. Stevenson v. Moody, 85 Ala. 33, 4 So. 595; Huckabee v. Shepherd, 75 Ala. 342; Cary v. State, 76 Ala. 78. After showing discharge in bankruptcy, the burden was on plaintiff to prove a new promise subsequent to his bankruptcy. Bevis v. Gay, 212 Ala. 525, 103 So. 555; Lauderdale v. Granger, 20 Ala. App. 356, 102 So. 148. No replication was filed to plea C, and, plaintiff having joined issue on the plea, proof of the plea made out a complete defense. Clark v. Whitfield, 213 Ala. 441, 105 So. 200. Judgment in the former action was a bar to the present cause. Crowson v. Cody, 215 Ala. 150, 110 So. 46.
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, 169 Ala. 579, 53 So. 815.
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, 206 Ala. 215, 89 So. 660; Quinn v. Pratt Con. Coal Co., 177 Ala. 434, 59 So. 49. However, no apt ground of demurrer called the court's attention to such defect, and the grounds assigned were overruled without error.
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, 149 Ala. 200, 202, 43 So. 184. The replication, setting up a new promise, was limited to plea B, a plea of discharge in bankruptcy. The evidence was addressed to and the decision rendered probably on the evidence under this issue.
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.