Austin & Sons v. Hunter

THOMAS, J. Appellants were the defendants below in this action, which was brought by the appellee, Hunter, against them on a garnishment bond that they had executed in order to procure the issuance of a writ of garnishment in aid of a previous suit pending at the time in a justice court, brought there by Austin & Co., one of the appellants, on an account for $37.53 against said Hunter, who was duly served with summons, and which suit proceeded regularly in that court to formal judgment for that amount in favor of said Austin & Co., and against said Hunter, before the present suit was' brought on the garnishment bond. The only breach of the bond alleged in this action is, in one count, that the garnishment was wrongful, and, in the other, that it was wrongful and malicious, in that Hunter, it is alleged, did not owe the debt on which the garnishment was founded.—Mobile Furniture Co. v. Little, 108 Ala. 399, 19 South. 443. The question of whether he owed the debt or not was, as seen, determined against him by the mentioned judgment of the justice of the peace in a cause where such justice had jurisdiction both of the person and of the subject-matter, and was thus res judicata in this, a collateral action between the same parties.—24 Am. & Eng. Ency. Law, 717; Ex parte Davis, 95 Ala. 9, 11 South. 308; Cotton v. Holloway, 96 Ala. 544, 12 South. 172; Peet v. Hatcher, 112 Ala. 514, 21 South. 711, 57 Am. St. Rep. 45; Steveson v. Murray, [517] 87 Ala. 445, 6 South. 301; Logan v. Cen. Iron & Coal Co., 139 Ala. 548, 36 South. 729. Res judicata, however, which is merely an estoppel by judgment, may, like other estoppels — estoppels in pais and estoppels by deed — be waived as a defense, and is waived where the party relying upon it has an opportunity of pleading it,. and fails to do so specially.—9 Ency. P. & P. 611 et seq.; 8 Ency. P. & P. 5 et seq.; 24 Am. & Eng. Ency. Law, 836; Jones v. Peebles, 130 Ala. 269, 30 South. 564; Winkler v. Powell, 173 Ala. 46, 55 South. 536; Collins v. Smith, 155 Ala. 607, 46 South. 986; Baird v. Howlson, 154 Ala. 367, 45 South. 668; Clark v. Johnson, 155 Ala. 650, 47 South. 82; Mobile R. R. Co. v. Bay Shore Lumber Co, 158 Ala. 626, 48 South. 377; Blair v. Williams, 159 Ala. 658, 49 South. 71; Gulf Cedar Lumber Co. v. Crenshaw, 169 Ala. 617, 53 South. 812. The cases last cited impliedly and in effect overrule the previous cases of Cook v. Field, 3 Ala. 53, 36 Am. Dec. 436; and Hopkinson v. Shelton, 37 Ala. 306. The defendant here pleaded the general issue, “with leave to give in defense any matter that can be well pleaded.” Under such a plea, unobjected to, and issue joined thereon, the defense of estoppel is available as though specially pleaded.—Converse Bridge Co. v. Collins, 119 Ala. 538, 24 South. 561; L. & N. R. R. Co. v. Williams, 5 Ala. App. 643, 644, 56 South. 865, 59 South. 673. The judgment mentioned and the proceedings on which it was based, showing jurisdiction in the justice of both the person and the subject-matter of the suit, having been introduced and proved under such a plea, were not open to attack by the plaintiff on the ground that they were erroneous. The plaintiff should have [518] corrected the judgment by appeal or other direct proceeding before bringing this suit, if he wished to avoid its conclusive effect. The lower court was consequently in error in permitting plaintiff to offer evidence tending to show that the judgment mentioned was rendered against him as a result of error or mistake on the part of the justice. It follows that the judgment here appealed' from must be reversed. Reversed and remanded.