Lawrence v. Ware , 37 Ala. 553 ( 1861 )

A. J. WALKER, C. J.

The general principle is, tliát judgments and'.verdicts'.-are-only binding on parties and privies. The plaintiff in this suit was neither a party nor privy to the former suit “which is , pleaded in bar. With the person in whose name the former suit was brought, the plaintiff- occupied no relationship, in reference to the property in'the note, which would constitute privity. — 1 Green-leaf on Evidence, §§ 189, '523. -The only relationship which existed between Them,, was that of a temporary agency on the part of'the'plaintiff in the former suit, to demand payment of the note, and, in default of payment,, to deliver it to an attorasy.for collection.

It was decided in Mayer v. Faulkrod, (4 Wash. C. C. 503,) that where the suit .'was brought in the name óf an improper plaintiff, and a. recovery had, and payment made, there being no collusion, the payment would constitute?a defense' to an action 'by the: true owner of the cause of action. But that decision is put expressly upon the ground of a payment, made by thedegal- and compulsory sentence of a competent tribunal ;-and it is admitted that, - in the absence of such payment, the .former judgment would be no' defense. Besides,, the correctness of that decision is doubted. — -2 Part Cow. & Hilbs Notes.to Phil. Ev.,(3d.ed*) 167.

It is true that the court will always inquire who are-the.' real parties, in determining whether a former judgment'ia--a bar. But there is nothing in the record in this .case, which authorizes, the inference that, the plaintiff was the real party in the former suit.. The other suit was, as to him, res infer alios,-acta. ' He had no right to control the proceedings in the case, or to produce or cross-examine witnesses, or, to appeal; and it does not at all appear that he-participated?,in conducting it, or ev-en knew of its existence.

Beversed and remanded..