Dillard v. Johnson

GARDNER, J. The foregoing statement of the case will suffice for a general understanding of the questions here presented. It is first insisted by counsel for appellant that the evidence shows that before the levy of the writ of attachment in the suit by Johnson against the Jacksons, upon the property to which the appellant Dillard interposed his claim 'and executed bond, which is the foundation of this suit, said property was fastened with a lien in favor of Dillard for rent due by Johnson, as well as covered by a mortgage executed by Johnson to Dillard; and that therefore the property was not subject to the lien of attachment, and no harm could result to Johnson by a failure on the part of Dillard to restore it. Our fttention is directed to the ease of Holloway v. Burrough & Taylor Co., 4 Ala. App. 630, 58 South. 953, wherein the claimant executed bond, as here, and obtained possession of the property levied upon, but failed and refused to make the statutory affidavit and suffered his claim suit to be dismissed, as was the course pursued in the instant case. It was there held that the question as to the right of property as between the claimant and the plaintiff in the attachment suit had not become a matter res adjudicata, as a result of the dismissal of the claim suit, but that the question as to the liability of the property to the satisfaction of the plaintiff’s demand was open for litigation and determination in the suit by the plaintiff against the claimant! for a breach of the bond. The substance of the above statement of facts was contained in the pleas, and the cause reversed for the action of the ebui’t in sustaining demurrers to these pleas. Conceding the correctness of the holding in the case of Holloway v. Burrough & Taylor Co., supra, we are of the opinion the principle there announced is without effect in the instant case for the following reasons: On November 24, 1915, said Dillard commenced suit against Johnson to collect the balance due him by-said Johnson, the suit having been begun in the justice court. The exact nature of the cause of action is not here disclosed, but the evidence shows that upon the trial of that cause the question of the indebtedness of Johnson to Dillard for rent on his plantation was gone into, together .with the indebtedness for attorney’s fee which was stipulated for in the notes executed by Johnson. This suit resulted in a judgment being rendered on December 13, 1915, in favor of Dillard in the sum of $99.75, a portion of the indebtedness having been remitted in order to bring the cause within the jurisdiction of the justice court, and an order was made, condemning the property levied on in that suit for the satisfaction of the judgment. The claim bond, which is the foundation of this suit, was executed January 18, 1916. The judgment .in. the justice court against Johnson was, by the latter, carried to the circuit court for review, and that cause was submitted to the trial court at the same term the cause here under consideration was submitted. It appears from the evidence also that the mortgage held by Dillard against Johnson for $283.39, representing a past-due indebtedness, had been paid prior to the institution of the instant case; the evidence indicating that this mortgage was paid very soon after it was due. There was some evidence tending to show that at the time this mortgage was paid to the bank, where it had been deposited by Dillard, it was at that time in the . hands of an attorney, and an attorney’s fee had accrued. The evidence for the plaintiff tends to show that when he paid the bank he received a receipt, but did not receive the mortgage. The receipt, however, does not appear in the evidence. It appears, however, that upon the trial of the case of Dillard against Johnson in the justice court, the question of attorney’s fee was gone into, and there is also evidence tending to show that the indebtedness claimed on account o-f attorney’s fee amounted to $100. This amount, however, included all matters pertaining to the collection of *637 rent from Johnson, as well as any fee that might be considered due on the mortgage which was on deposit at the bank. There was, however, no evidence indicating the amount of any attorney’s fee claimed as to any particular transaction, and no evidence seems to have been offered indicating what would have been a reasonable attorney’s fee due upon the mortgage on deposit in the bank separate from that for the collection of rent. The trial of the cause in the circuit court of Dillard against Johnson resulted in a judgment for the plaintiff in the sum of $38.-44 and costs, and the property attached was condemned for the satisfaction thereof. In rendering judgment in the instant case, the court found for the plaintiff, and ascertained the value of the property in possession of the defendant, under the bond sued on, to be $134.97; and it further ascertained that the amount of the judgment in the case of Dillard against Johnson “pleaded by the defendant as to the set-off, to be principal $38.44 and costs $25.70, making a total of $64.14.” It was thereupon ordered that the plaintiff recover of the defendants the sum of $70.83. [1] It thus appears that the question of indebtedness of Johnson to Dillard was litigated in the case of Dillard against Johnson, which was begun in the justice court and subsequently carried to the circuit court, resulting in the judgment for the plaintiff, as above indicated, and that said Dillard was given full credit for the amount ascertained by the court to be due in the judgment rendered in the instant case. Such being the situation, therefore, and the question of the amount of indebtedness due by Johnson to Dillard having been litigated and satisfied in the manner indicated, it clearly appears that these facts bring- the case from without the influence of the principle announced in the Holloway Case, supra. The defendants offered proof tending to show that some of the cotton bought by strangers from some of the tenants on the place, and turned over to Dillard in payment of the rent, did not class middling, and that its value was less than the value of middling cotton. What we have above stated discloses that the question of indebtedness was the very subject of litigation, in the justice court in the case of pillard against Johnson, and was actually determined, subsequently resulting in a judgment in the circuit court; and therefore this question was not again open for consideration as to the amount due for rent. There was therefore no error in sustaining the objection to this evidence. It is next insisted that the defendant Dillard should have been allowed as set-off damages resulting from the plaintiff, Johnson, holding over after the termination of his right under the lease; he having remained in possession of the land for a period of two months in the year 1916, and until he was ousted by the judgment in the unlawful detainer suit. While damages for the detention of land was claimed in the complaint in the justice court, yet' in the suit for unlawful detainer no damages were entered. The case of Belshaw v. Moses, 49 Ala. 283, is relied upon as holding that the judgment in an unlawful detainer suit is no bar to a subsequent action for damages sustained either before or after its rendition. In that case it does not appear that any damages were claimed in the suit for unlawful detain-er. It is further stated that the suit was for damages which accrued subsequent to the rendition of the judgment in the unlawful detainer suit. Here, the damages were claimed but not recovered, and the damages here offered to be set off are those which are alleged to have accrued prior to the judgment in the unlawful detainer cause. Whether under the facts as here presented the question of these damages is a matter res adjudicate we need not determine. [2,3] The lease contract, under which Johnson, the plaintiff, held the land, stipulated for a period of five years, and the undisputed evidence shows that this lease had not expired at the time Johnson was ousted by the unlawful detainer judgment. The unlawful detainer suit was founded upon a forfeiture provision in the lease upon the failure on the part of the lessee to pay the rent when due. We have recently had under consideration section 4273 of the Code of 1907, concerning the recovery by the landlord of double the amount of the annual rent against the tenant who unlawfully retains possession after the expiration of his term. Vizard Inv. Co. v. Mobile Dist. & Oyster Co., 197 Ala. 625, 73 South. 328. We there held that this penalty was not recoverable until the expiration of the term of the lease, i. e., its termination by its own limitation, and not by the lessor’s termination by forfeiture in accordance with a provision in the contract. Under this authority, therefore, it clearly appears that Dillard was not entitled to this penalty as a set-off against the action; nor did he prove any actual damages upon the trial of the cause. True, when questioned in regard to any such damages he sustained on account of Johnson failing to vacate the premises on January 1st, in accordance with -his demand, he stated “he might get somewhere about it; that he would insist he was damaged $140 or $150” and this is the extent of the evidence as to the actual damage claimed to have been sustained. Indeed, the defendant Dillard did not even state that he was damaged in any particular sum, but only as to what he would insist upon. Clearly, therefore, the trial court treated this testimony as merely presenting a general conclusion, or speculation, on the part of the witness, unsupported by any statement of fact, and considered the evidence upon this point as without probative force; and in such conclusion we concur. It therefore results *638 that without regard, to the question of res adjudicata, the plaintiff has proved no actual damages, and under the undisputed proof in the case he was not entitled to the penal provision as stipulated in section 4273 of the Code. We have here considered the questions presented in brief of counsel for appellant, and, having reached the conclusion that the trial court committed no reversible error in the judgment rendered, it will accordingly be affirmed. Affirmed. ANDERSON, O. J., and McOLELLAN and SAYRE, JJ., concur.