Thomason v. Odum , 31 Ala. 108 ( 1857 )

WALKEN, J.

— The legal proposition, that parol evidence was not admissible to vary the record, which was intended to be assorted by the first charge, was certainly correct; but the charge is objectionable, because its effect was to shift from the court to the jury the duty of determining what parol evidence was inconsistent with the record. — DeGraffenreid v. Thomas, 14 Ala. 681.

2. The clerk has copied into the transcript of the record of the circuit court for Perry county a memorandum, made by the plaintiff, of matters which he proposed to submit to arbitration, an agreement between the plaintiff and one Hobson to arbitrate, and the award of the arbitrators, as if those papers were parts of the record. It is possible that the court regarded those papers as a part of the record. The arbitration was not made by order of court; and those papers are not identified, and made matters of record. They were not, therefore, a part of the record, and were not admissible in evidence upon the clerk’s certificate.

3. "We would not, however, reverse the case, on account of the inadmissibility of this evidence; because it was competent for'the plaintiff to waive the absence of the original papers, and proof of their execution; and this he must be understood to have done, by the omission to object to their introduction, or to move the court to exclude them.

4. The second charge of the court assumes, that if the identity of the slave mother was established, the descent of the others from her after the arbitration being admitted, the record, of itself, presents a complete bar to the maintenance of the suit. "We proceed to consider the correctness of this assumption. The judgment entry is in the following words : [copying it.] Does that judgment bar the maintenance of this action ? To the decision of that question, it is necessary for us to ascertain whether the entry is a technical retraxit; and, if it be, what is its effect.

A retraxit can only be entered by the plaintiff in person; but it is decided in Conk v. Lowther, 1 Ld. Raymond, 597, that such a recital, as that contained in the entry under consideration, shows that the plaintiff in person entered the retraxit. The entry says, that the parties came by their attorneys; bat it says, the plaintiff entered the retraxit. We must intend, upon the authority of the case from Ld. Raymond, that the plaintiff in person entered the retraxit. We must understand the word retraxit in its well ascertained technical meaning. — In 3 B1a. Com. 296, a retraxit is thus defined: “A retraxit differs from a nousnit, in that the one is negative, and the other positive: the nonsuit is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his suit again upon the payment of costs; but a retraxit is an open and voluntary renunciation of his suit in court, and by this he forever loses his action.” So, in Beecher’s case, 8 Rep. 58, the same principle is thus stated : “A retraxit is a voluntary acknowledgment” by the plaintiff “that he hath no cause of action, and therefore he will no farther proceed, &c.; and therefore is a bar forever.” — In 1 Dunlap’s Practice, 494, (an American work,) it is said: “The plaintiff may also openly appear in court, and renounce his suit; and this is as complete and effectual a bar, as if a verdict had been rendered for the defendant, and he can never afterwards commence another action for the same cause.” — See, also, Bingham on Judgments, 48, (13 L. L. top p. 20;) 7 Bacon’s Abr. 215, Nonsuit, A; Bullock v. Perry, 2 St. & P. 319.

5. The entry of retraxit, upon the authority of the foregoing citations, would, of itself, have precisely the same effect as if there had been a verdict and judgment upon the merits of the case. The action was trover. A verdict and judgment in favor of Hobson, the defendant in the trover suit, would have been conclusive against the plaintiff, in favor of the defendant in this case, holding under Hobson, if the judgment had been rendered before he, Hobson, parted with the property, unless the plaintiff claimed in this suit upon a title acquired after the judgment. But, if the trover suit was commenced after Hob-son, who was the defendant therein, had parted with the property, which, by a regular succession of transfers, came to the defendant in this suit, the plaintiff would not be estopped. The defendant in this case could not be estopped or affected by a judgment against Hobson, from whom such defendant derived title, after he (the defendant in the judgment) had parted with the property; and, as estoppels must be mutual, it could not avail the defendant in this suit. — Poster v. Earl of Derby, 1 Adol. & El. 788; Lock v. Nosborn, 3 Mod. 141; 1 Greenleaf on Ev. § 586 ; Adams v. Barns, 15 Mass. 365; 2 Starkie on Ev. 194. It follows, tbat the judgment of retraxit was, or was not, a bar in this ease, according as it was rendered before or after the sale by Hobson. The bill of exceptions does not disclose with certainty whether the judgment of retraxit was before or after the sale by Hobson. It was a question for the jury under the facts, and the court was not authorized to assume that it was previous to the sale. The charge was, therefore, erroneous.

6. The action in the circuit court of Perry county was, as we infer from the imperfect record, trover. If the plaintiff’s cause of action against Hobson for the conversion was satisfied, it would defeat the suit of the plaintiff in this case, whether it was before or after Hobson sold, because a party is only entitled to one satisfaction. The award of the arbitrators directs, that the plaintiff, M. D. Thomason, shall enter a credit in the case pending in the circuit court of Perry against Hobson, “for the negroes, in detinue, or in suit for damages.” It does not appear whether this award, that the plaintiff should enter a credit, was predicated upon a.decision by the arbitrators in favor of the defendant, Hobson, on the question of title, or upon a decision upon the question of title in favor of the plaintiff, and a satisfaction of the plaintiff for the conversion by Hobson in the numerous matters of controversy submitted to the arbitrators. The arbitrators may have decided the question of title in favor of the defendant, and therefore directed the plaintiff to credit Hobson in the suit against him; or they may have decided the question of title in favor of the plaintiff, and satisfied his claim, on account of the conversion by Hobson, by allowing to- him a credit on some charge in favor of Hobson against him: It is not disclosed upon which ground the award was rendered. That was, therefore, an appropriate subject for parol evidence. If, upon another trial, it should be shown that the arbitrators satisfied the plaintiff’s claim growing out of Hobson’s conversion of the property, by an allowance made to Thomason, the plaintiff in some other matter embraced in the arbitration, the award and the judgment of retraxit would be conclusive against Thomason in this case, whether it was before or after the sale by Hobson, because the plaintiff is not entitled to two satisfactions. If it should appear that the arbitrators adjudged the question of title against the plaintiff, he is estopped by it, and the judgment of retraxit thereupon rendered, if they were before Ilobson sold the property.

The judgment of the court below is reversed, and the cause remanded.