Lehman, Durr & Co. v. Clark

SOMERYILLE, J. Tbe main point raised by tbe present record is one involving tbe question of res adjudicaia. It is contended by appellants, that tbeir discharge as garnishees, in tbe garnishment proceeding brought by Wooldridge on tbe judgment obtained by him, for tbe use of Henry W. Clark, against tbe Masonic Temple Association, is a full defense to tbe present suit, wbicb is one brought in tbe name of Clark himself, claiming to be tbe bolder and quasi-owner of tbe notes due by tbe garnishees, Lehman, Durr & Co., for tbeir unpaid stock subscriptions to said Masonic Temple Association. Tbe facts in tbe garnishment suit were, in substance, precisely those that existed in tbe case of Wooldridge v. Holmes, 78 Ala. 568; the defendant Holmes and tbe appellants occupying analogous positions, as garnishees and stock-subscribers in tbe same corporation. In that case, as here, it appeared that the judgment on wbicb tbe garnishment issued bad been recovered in tbe name of Wooldridge, for the use of Clark as beneficiary. Clark was considered, therefore, by tbe terms of tbe statute, as tbe sole party plaintiff on tbe record. — Code, 1886, § 2595. Tbe defense set up to that suit by Holmes was, that the plaintiff held tbe stock-subscription note due by tbe garnishee, as collateral security for tbe judgment on wbicb tbe garnishment proceeding was based. It was said by tbe court, that this fact was no answer to tbe garnishment suit, and constituted no reason why Wooldridge could not condemn tbe debt for tbe use of Clark, although the latter could have elected to sue in bis own name on tbe note, for tbe purpose of enforcing bis lien on it. If ? he desired to waive this lien, and condemn the note by garnishment, he could do so. The effect of this decision, in substance, was to hold that Clark had open to him a choice of two separate proceedings: (1) .he could sue directly on the Holmes note, by virtue of his being a holder of it as collateral security for his judgment against the Masonic Temple Association; or (2) he could waive this lien, or right, and proceed to condemn it by garnishment based on this judgment. In this case, Clark at first elected to proceed in the second of the above mentioned modes. This he could have done under the authority of the case cited (78 Ala. 568). But the garnishees, Lehman, Durr & Co., without denying their liability for the debt evidenced by the notes, asserted that the right to sue existed alone in Clark — that he held the title to the notes, and that he should have brought the action in his own name, as collateral holder of these notes. On this issue the garnishees were discharged. Thereupon, the present suit was brought, in the mode in which the garnishees had insisted that it should be brought. Under this state of facts, we think the City Court correctly decided that the rule of res adjudicata did not apply. It is true, that in ordinary cases, a judgment in favor of a garnishee, discharging him from all liability, is conclusive against the plaintiff, in another action between the same parties, although the judgment of discharge was erroneous. This is so, at least, where the same issue on the merits was actually decided in the former suit, or necessarily involved, or might and ought to have been there litigated and decided. Tankersly v. Pettis, 71 Ala. 179; McCall v. Jones, 72 Ala. 368; 3 Brick. Dig. 580, §§ 75 et seg. Here, however, another principle prevails, to take this case out of the operation of that rule. The liability of the garnishees was not one of the issues involved in the former suit. Such liability was never controverted. The only issue was the right of the plaintiff to waive his lien on the note, and to condemn it in the mode attempted. This plea induced Clark to abandon that right, which he lawfully had, and to submit to the discharge of the garnishees on the suggestion that he should adopt the other remedy given by law. In other words, he elected to sue on the note due by garnishees, instead of condemning it by garnishment. This election was induced by the plea of the garnishees themselves. We hold that the rule applies, that “a party who obtains or defeats a judgment [114] by pleading, or representing a thing or judgment in one aspect, is estopped from giving it another in a suit founded on the same subject-matter.” — 1 Herman on Res Judicata, § 288, p. 342, and note 1; Hill v. Huckabee, 70 Ala. 183; Caldwell v. Smith, 77 Ala. 157. It would be no defense to this action, that Clark obtained the assignment to himself of the notes by fraudulent devices. The debtor can not set up such a defense in bar of the action. Only the assignee in bankruptcy, or the creditors of the bankrupt, could assail the validity of Clark’s title. It is good between the parties, until set aside in some proceeding instituted for that purpose.— Wood v. Steele, 65 Ala. 436; McCausland v. Drake, 3 Stew. 344. "We discover no error in the record, and the judgment is affirmed. Clopton, J., not sitting.