Opinion
2 Div. 499.
February 14, 1933. Rehearing Denied March 7, 1933.
Appeal from Circuit Court, Hale County; Thos. E. Knight, Judge.
Action in detinue by O. B. Willis against Ivey F. Lewis. From a judgment granting defendant's motion for a new trial, plaintiff appeals.
Affirmed.
Certiorari denied by Supreme Court in Willis v. Lewis, 226 Ala. 633, 148 So. 332.
S. F. Hobbs, of Selma, for appellant.
Appeals from a judgment of a justice of the peace must be taken within five days after the rendition thereof. Code 1923, § 8777. A justice of the peace cannot approve an appeal bond tendered after the lapse of ten days from the date of the rendition of the judgment; and, when it appears that such is the case, the circuit court should dismiss the appeal on motion. Frohlichstein v. Jordan, 138 Ala. 310, 35 So. 247; Union Mut. Ins. Co. v. Robinson, 216 Ala. 527, 113 So. 587. When an appeal is taken, the justice must return all of the original papers in the cause, together with a statement of the case signed by him and the judgment rendered by him to the clerk of the court to which the appeal is taken within ten days after the appeal is taken. Code 1923, § 8780. And the justice must also forthwith issue notice of an appeal to the appellee, which must be executed by personal service on him, his agent or attorney, at least fifteen days before the case stands for trial in the appellate court, and such notice be returned by the constable to the clerk immediately after service. Code 1923, § 8781.
Ivey F. Lewis, of Birmingham, for appellee.
The purchaser of property pendente lite takes it subject to the hazard of litigation, and is bound by the judgment afterward rendered as if he were an actual party to it. 38 C. J. 15; Bolling v. Carter, 9 Ala. 921; Winston v. Westfeldt, 22 Ala. 760, 58 Am. Dec. 278; Moragne v. Doe, ex dem. Moragne, 143 Ala. 459, 39 So. 161, 111 Am. St. Rep. 52, 5 Ann. Cas. 331; Thompson v. Johnson, 201 Ala. 315, 78 So. 91; Greenwood v. Warren, 120 Ala. 71, 23 So. 686; Cain v. Key, 195 Ala. 105, 70 So. 845; Harsh v. Wald, 205 Ala. 526, 88 So. 844; McAllister v. Catchings, 210 Ala. 392, 98 So. 303; Perrine Sawmill Co. v. Powell, 211 Ala. 620, 101 So. 389; Stuart v. Coleman, 78 Okl. 81, 188 P. 1063, 10 A.L.R. 411. The plea of res adjudicata is a complete defense where the evidence shows that the parties are the same, the subject-matter the same, and that the judgment was upon the merits. Nix Son v. Choate, 216 Ala. 189, 113 So. 16; Yancey v. Denham, 211 Ala. 138, 99 So. 851; Jones v. Russell, 206 Ala. 215, 89 So. 660; Hanchey v. Coskrey, 81 Ala. 149, 1 So. 259; Crausby v. Crausby, 164 Ala. 471, 51 So. 529; Irby v. Commercial Nat. Bank, 204 Ala. 420, 85 So. 509; Clark v. Whitfield, 213 Ala. 441, 105 So. 200. When a bond is made and an appeal is taken from a justice court, the proceedings are presumed regular unless the contrary is shown. Hall v. De Kalb County, 207 Ala. 275, 92 So. 641; Ex parte Fletcher, 188 Ala. 1, 66 So. 148; Milazzo v. Commercial Finance Co., 202 Ala. 328, 80 So. 410. A party who obtains a judgment by pleading or representing anything in one aspect is thereby estopped from giving the same thing in another aspect in the same case or a subsequent suit. Fox v. Sampey, 9 Ala. App. 561, 63 So. 769.
Lewis (appellee here) brought suit in the justice court of Harry T. Collins, against one Tom Bell, claiming a certain mare and foal, here involved, as his property. The above suit was filed about December 15, 1927, and tried by the justice some few days after Christmas, or some time in January, 1928. It appears that in December, 1927, the justice (as he expresses it, sitting in equity) heard the plaintiff's side and continued the case to a later date in January when he heard the other side, Lewis in the meantime being absent. The justice on this point testified: "This trial was had before the court on its equity side. I was sitting in equity. There never was a law trial. * * * I never have any trials at law." A judgment was entered in favor of Tom Bell, but the date of this judgment is uncertain and on this point the evidence is in conflict. Immediately after the decision was rendered the justice wrote to Lewis, the plaintiff, informing him of the result. Where Lewis lived or how long it would take the mail to reach him, or when it did reach him does not appear. In "a few days," the exact number being uncertain, the justice received from Lewis an appeal bond, and in a few days the justice forwarded the bond to the circuit court. The bond was filed in the circuit court February 14, 1928, and the whole file has now been lost.
Some time after the judgment in the justice court, Willis (appellant here) asked Collins, the justice of the peace, about the case of Lewis v. Bell and he was told by Collins that the decision was in favor of Bell and that no appeal had been taken. Thereupon Willis purchased the mare and foal from Bell and resold the mare to Bell's wife, who was a tenant on his place.
On October 3, 1928, the appeal was heard in the circuit court and judgment rendered for Lewis for the property sued for and damages. On executing the writ the sheriff delivered the mare and colt to Lewis, who retained possession, and was so in possession at the time of the bringing of this suit. Willis knew of the claim of Lewis, was present at the trial in the justice court and was present at the trial on appeal in the circuit court, and as a friend of Bell's with the permission of the court, participated in the trial, to the extent of assisting in the examination of witnesses.
The case resolves itself into the following questions: (1) Was there a hiatus in the proceedings in the case of Lewis v. Bell on account of a failure on Lewis' part to perfect his appeal from the judgment in the justice court within five days as is required by section 8777 of the Code of 1923? If the appeal bond was not given within the five days, then the appeal was subject to dismissal on the motion of Bell. Union Mut. Ins. Co. v. Robinson, 216 Ala. 527, 113 So. 587. A failure by Bell to raise this question on the trial in the circuit court would be binding on him and he could not afterwards take advantage of it. It seems that this question was not raised by Bell on the trial of the appeal case and as to him it is waived.
(2) The controlling legal question then arises, as to how far and to what extent is Willis bound by the waiver of Bell. Did Willis purchase the property from Bell within the five days allowed for appeal from the judgment rendered by the justice of the peace? This we think was a question for the jury and was so properly submitted to them. If Willis did purchase the property after the lapse of five days from the rendition of the judgment in the justice of the peace court, did he acquire title as against this defendant who was the plaintiff in that suit?
The doctrine of lis pendens is for the purpose of preserving the property involved in the suit and is based upon the necessity that there be an end of litigation. 38 Corpus Juris 9 (5). Where a purchase is made with actual notice of the pendency of a suit relating thereto, there is no question but that the person acquiring the right takes subject to the judgment or decree. 38 Corpus Juris 9 (7). This status remains until the termination of the suit. Willis, as purchaser from Bell, acquired the property subject to the rights of Lewis, and he only got such title as Bell had. Willis had full and actual knowledge of all the facts, both as to the suit in the court of the justice of the peace and of the trial of the case de novo in the circuit court on appeal, where he appeared with Bell and if not as his attorney, certainly as his agent, in the examination of witnesses. If such was a fact, he must have known that the appeal bond from the justice court had not been given within the five days allowed by law. The cause was allowed to proceed to judgment without this point having been raised. It must, therefore, here be presumed that the proceedings taking the appeal were as to taking and filing the appeal bond in all things regular. Ex parte Fletcher, 188 Ala. 1, 66 So. 148; Hall v. De Kalb County, 207 Ala. 275, 92 So. 641. Being in privity with Bell, this plaintiff is bound by the judgment in the case of Lewis v. Bell on appeal, under a doctrine similar to that of res judicata, which is based upon the necessity that there may be an end of litigation. 38 Corpus Juris 9 (5); McAllister v. Catchings, 210 Ala. 392, 98 So. 303.
The above questions have been passed upon in view of the fact that an affirmance of this judgment requires another trial in the court below. There is, however, another reason why the judgment must be affirmed. One of the grounds for the new trial was that the verdict was contrary to the evidence. This placed upon the trial judge the duty of weighing the evidence. He had all the parties before him, heard them testify, observed their manner on the stand, and, generally, was in a better position to pass upon this question than are we. According to the conclusion of the trial judge in this matter, the presumption to which it is entitled, his decision must be affirmed. Cobb v. Malone et al., 92 Ala. 630, 9 So. 738.
The judgment is affirmed.
Affirmed.