Holland v. Fairbanks-Morse & Co.

ANDERSON, J. The third plea does not set up a judgment that would be binding upon this plaintiff, so as to preclude it from recovering a judgment against the present defendants. It does not aver or show that these defendants were privies or parties to the former suit. It shows that the action was against the boat, and not the present defendants; and while they may have defended the suit against the boat, and the issues here involved may have been litigated, there is no averment in the plea that the adjudication of same could be binding between the parties to the- present cause. It is true the plea avers that the issues here involved' were those involved in the former .suit, and which might include the defendants’ personal liability; yet a decision of this question, in a suit between this plaintiff and the boat, could have had no binding effect upon these defendants, who were not parties thereto, and who merely defended the suit for the boat. There is nothing in the plea to indicate that a personal julgment could have been rendered for or against these defendants in the former suit. If, therefore, no valid judgment could have been rendered against these defendants in the former suit, then the judgment in favor of the boat could not preclude the plaintiff in the present suit, regardless of the issues, that may have been injected in the suit between it and the boat.—Fidelity Co. v. Robertson, 136 Ala. 379, 34 South. 933, and cases there cited; Phillips v. Thompson, 3 Stew. & P. 381. [201] Plea 3 was subject to tbe second ground of tbe demurrer, if not to some of the other grounds. Tbe judgment of tbe law and equity court is affirmed. Affirmed. Dowdell, C. J., and Sayre and Evans, JJ., concur.