McCall v. Jones

SOMERYILLE, J. The rule of res adjudicata, or former recovery, is confined to those cases where the parties to the two suits are the same, the subject-matter the same, the identical point is directly in issue, and the judgment 'has been rendered in the first suit on that point.—Gilbreath v. Jones, 66 Ala. 129; 2 Smith’s Lead. Cases, 609 [573]; Freeman on Judg. § 258. It is not only essential that the issue, or point in question, must [372] either have been actually decided, or necessarily involved in the first case, but the .first judgment, sought to be pleaded in bar in the second suit, will not be available as a defense, unless it was a judgment on the merits of the case.—McDonald v. Mobile Life Ins. Co., 65 Ala. 358; Freeman on Judg. § 460; 1 Greenl. Ev. § 528; Hutchinson v. Dearing, 20 Ala. 798. And it is, furthermore, now settled, that if the issue in the first trial was broad enough to cover that in the second, extrinsic or parol evidence, which is not contradictory of the record, is admissible to show that the matters involved or decided were the same.—Chamberlain v. Gaillard, 26 Ala. 504; Wells’ Des Adj. 252, § 297; Freeman on Jqdg. §§ 260-263. As to what issues may be considered as involving the merits of a case, it is not always easy' to determine. But it seems generally to be conceded, that where a suit has been defeated for non-joinder or misjoi/nder of parties plaÁnüff before the court, a judgment rendered alone on this ground can not be considered as a decision on the merits.—Freeman on Judg. §§ 263, 266; 2 Smith’s Lead. Cases, 673; Wells’ Des. Adj. p. 15, § 19, p. 361, § 440, p. 384, § 455; Vaughan v. O'Brien, 57 Barb. (N. Y.) 491; Hughes v. United, States, 4 Wall. 237; Miller v. Maurice, 6 Hill, 114; Hill v. Huckabee, 70 Ala. 183. It is evident- that, in view of this principle, the court erred in ruling that the judgment rendered in the first suit was a bar to the present action. The first suit was brought by the wife, Mrs. Laura McCall, alone, but was amended so as to join, as a co-plaintiff, her husband, Tristam B. McCall, who sues as sole plaintiff in the present action. We thus had the case presented, of husband and wife suing at law, as joint parties plaintiff, for what the evidence disclosed to be the wife’s equitable separate estate, which had been previously reduced to possession.- It is clear, therefore, that the first suit could only have been instituted by the husband in his own name alone, and that the wife was improperly joined with him.—Pickens v. Oliver, 29 Ala. 528; Gerald v. McKenzie, 27 Ala. 166. The fact is clearly averred in the pleadings, and is admitted by appellee’s demurrer, that the cause went off upon the point, expressly adjudged by the court, that the husband and vnfe could notjointly maintain such an action. The issue decided, therefore, was one of misjoinder of parties plaintiff, involving their capacity to sue,-fatlier than the non-existence of a meritorious cause of action in behalf of a proper plaintiff. Although, the husband may have had, on the merits of the case, a good cause of action, fully sustained by the evidence; yet the action must, of necessity, have failed, because of the rule that, where several persons sue jointly as plaintiffs, they must show a joint cause of action against the defendant, and all must recover or none can [373] ■do so.—McLeod v. McLeod, at present term; James v. James, 55 Ala. 520; Hardeman v. Sims, 3 Ala. 747. There are no two opinions about the legal proposition, that the sarnie issue must be presented in both suits, in order that there should be a bar, or else the former adjudication can not be conclusive between the litigants.—Wells’ Res Adj. 240, § 282; Beadle v. Graham's Adm'r, 66 Ala. 99. The question in this suit is not one of the misjoinder of proper parties plaintiff — the point upon which it was adjudged that the plaintiff in the first action must fail. The husband sues alone, as the trustee of the wife, for her equitable separate estate, which had already been reduced to possession, the contract creating it appointing no special trustee; and there can be no doubt of his capacity to maintain the suit in his own name.—Pickens v. Oliver, 29 Ala. 528. The samé issue not being presented in both suits, and the first suit having been decided for misjoinder of parties plaintiff — a technicality not going to the merits of the case — the judgment pleaded in bar of this action is not conclusive by way of estoppel, and the doctrine of res adjudi-cata does not apply. If the first action had been allowed to proceed to judgment, the parties being allowed to recover on the merits without raising the question of misjoinder, a different rule, for manifest reasons, might apply. Such was the case of Hawkins v. Lambert, 18 B. Monr. (Ky.) 106, where the wife, suing alone for her separate estate without objection, failed on the merits of the case, no question being raised as to parties. In a second suit by both husband wife, for the same cause of action, the first judgment was held to be a bar. The judgment must be reversed, and the cause remanded.