Du Bose v. Marx , 52 Ala. 506 ( 1875 )

MANNING, J.

Appellee having a judgment against Kimbrough G. Du Bose, caused an execution thereupon to be levied on a horse belonging to appellant, and the horse to be sold to satisfy it, — appellee having executed to the sheriff a bond to indemnify him against loss for making the seizure and sale. One Bruce became the purchaser of the horse, and was sued in detinue for him by appellant, in which action she obtained verdict and judgment against Bruce’s administrator, after his death, for the horse, or his value, in the alternative, and for damages for the detention, — but not satisfaction thereof. Appellant then sued appellee in this action, for his trespass in causing her horse to be seized and sold by the sheriff.

Marx, the defendant in this action, pleaded first, “ in short, by consent, the general issue, with leave to give in evidence any and all matters in defence which he could do if the same were specially pleaded ” ( a mode of pleading often very embarrassing to plaintiffs and to the courts) ; and secondly, a special plea in bar setting forth that he did execute to the sheriff such indemnifying bond; that by reason thereof and by virtue of his execution against said Kimbrough C. Du Bose, the horse aforesaid was sold, and Bruce became purchaser thereof; that an action of detinue was brought by plaintiff against Bruce for the horse, and judgment was therein obtained after his death against his administrator for said horse, or his alternative value, and for damages for the detention, besides costs of suit, — upon which judgment the plaintiff therein caused a writ of execution to be issued and delivered to the sheriff; and that in said action of detinue the title to said horse, by virtue of the levy and sale to Bruce, was in issue, and was passed on by the jury in making up their verdict, whereby, he averred, plaintiff had waived the trespass, and was barred and precluded from maintaining this action against him.

The record shows a minute-entry reciting the overruling of a demurrer to the first plea, and contains a demurrer to the second plea, on the ground: 1st, that the plea did not aver satisfaction of the judgment against Bruce; and 2d, that the complaint showed that defendant (appellee) was a co-trespasser with the sheriff. In this, we presume, there was a mistake, and that as the demurrer was to the plea, the pleader meant to say that it (the plea) showed that defendant was a co-trespasser with the sheriff.

Joint trespassers are liable to be sued jointly or severally for damages for their trespass; and a recovery against one without satisfaction of the judgment is no bar to a recovery against the other, — anymore than a judgment without satisfaction, against one or more signers of a joint and several bond or promissory note, is a discharge of the others. Lovejoy v. Murray, 3 Wal. 1; Blann v. Crocheron, 19 Ala. 647 ; Same v. Same, 20 Ib. 320.

After an injury has been committed, the cause of action is not discharged by any act short of a release, or acceptance of something in satisfaction. Bowman v. Teal, 23 Wend. 306; Baylis v. Usher, 4 Moore & Pa. 790.

And “ a judgment recovered in any form of action is still but a security for the one general cause of action, until it is made productive in satisfaction to the party; and until then, it will not operate to change any other collateral concurrent remedy which the party may have. Drake v. Mitchell, 3 East, 251.

The same tortious act may be of such a nature as to enable the party against whom- it is committed to sue the tortfeasors, in either trespass, trover, or detinue, those being all actions ex delicto.

And since, as we have seen, joint tortfeasors may be sued severally, and the injured party has a right to bring against them severally either one of these three actions, and can be barred of this right only by a release, or the acceptance of something in satisfaction ; he may bring trespass against one, trover against another, and detinue against a third of the tortfeasors, if the third have possession of the chattels sued for, obtained with the aid of the tortious acts of the other two. Of course, however, if full recovery be had in each suit, the plaintiff would not be entitled to satisfaction from 'all. Upon a total or partial satisfaction of one of the judgments, the defendants in the others would be entitled, on audita querela, to have the judgments against them credited pro tanto. Lovejoy v. Murray, supra.

There are cases in which the tort may be waived, and instead of the action ex delicto, one ex contractu, assumpsit, may be brought. In such a case, the party cannot afterwards bring an action ex delicto upon the same matter for a tort. For by action ex contractu he affirms that the party acquired the thing which is the subject of the suit, by contract with him, and after having so asserted in the courts, and thereupon being allowed to recover, he will not be permitted to pursue as a tortfeasor any other person concerned in the transaction.

The law does not tolerate this incongruity. Fireman's Ins. Co.v. Cochran, 27 Ala. 228; Tankersley v. Childers,23 Ib. 781; Vandyke v. The State, 24 Ib. 81.

But an action of detinue does not admit that the property sued for was not tortiously taken from plaintiff. It rather implies the contrary. Consistently with it, trespass or trover may be brought against another party to the transaction, as one participating in the delictum, by which plaintiff’s property had been taken and was withheld from him.

Bruce, however, the purchaser at the sheriff’s sale, was not liable to be sued in trespass at all. He did not interfere with plaintiff’s possession of the horse, and was not a co-trespasser with the appellee, Marx, and the sheriff. And it may be doubted whether a recovery and satisfaction from him would be full compensation for the trespass committed by Marx and the sheriff, especially if this were accompanied by acts and circumstances maliciously injurious.

Certainly the action of detinue against Bruce, and the recovery of judgment therein, and issue of writ of execution, without satisfaction, constituted no defence to the suit in this cause against Marx, the appellee; and the demurrer to his plea, setting forth those facts as a bar to the suit, should have been sustained.

It is insisted that the error in overruling the demurrer to the second plea should not effect a reversal of the judgment; for, that the defendant Marx, besides that plea, had pleaded the general issue, to which also plaintiff had demurred, and her demurrer had been overruled; and that therefore, when she refused on leave given to plead over, judgment was correctly rendered against her.

The record does not contain any demurrer of plaintiff to the first plea referred to; which is, that defendant “ pleads in short, by consent, the general issue, with leave to give in evidence any and all matters in defence which he could do if the same were specially pleaded.” But there is a recital in the record that “the demurrer of plaintiff to defendant’s first plea being argued and heard, .... the same is hereby overruled.”

What was this demurrer ? There is nothing in the record to show. If there was one, it should have been in writing. The Revised Code, § 2656, declares: “No demurrer in pleading can be allowed but to matter of substance which the party demurring specifies ; and no objection can be taken or allowed which is not distinctly stated in the demurrer.” And the cases referred to by counsel for the appellee show that the court is strict in regarding what is commonly called a general demurrer, one that specifies no objection to the pleading, as a mere nullity, which it, therefore, overrules or disallows. Such a paper might be disregarded by the court, or taken from the files by its order, though usually it is overruled. And since the record does not contain anything purporting to be a demurrer to the first plea, or show that there was any paper of that nature in which an objection was specified to the plea, we are justified in supposing that there was no valid demurrer at all.

If we suppose, on the other hand, that there was a demurrer which, specified objections to the plea, we ought to presume that they excepted to defendant’s claim of “ leave to give in evidence [under the general issue] any and all matters in defence which he could- do if the same were specially pleaded.” There is nothing else in the plea to which objection could reasonably be taken, and if that was the ground of demurrer, then the court erred in overruling it; for although a motion might, perhaps, have been made to strike out that portion of the plea, we see no reason why the exception, to it might not also be made by demurrer. See Barron v. Vandvert, 13 Ala. 237.

However this may be, we are of opinion, on examining the record, that the declining to plead over related to the second plea only, after the court had, by overruling the demurrer to it, erroneously held that plea to be good, — the declining to reply being induced by this action of the court and referring to the same matter.

No replication was necessary to the general issue, which itself “ puts in issue all the material allegations of the complaint.” Revised Code, § 2639. The averments made in the complaint on one side, and the denial of them by the general issue on the other, constitutes an issue without more. It is only in cases in which defendants “ briefly plead specially the matter of defence ” (as the Code of 1852 required them to do in all except a few specified actions), that the general replication, “ the plaintiff joins issue on said plea,” is prescribed as the proper form of making an issue, when it is not intended to reply specially.

The demurrer to the second plea was considered and overruled on a day subsequent to that on which the entry in regard to the first plea was made. And it was error in the court, on overruling that demurrer, and upon “ plaintiff having declined to further plead, on leave being given,” to order “ that the said defendant go hence and be discharged, and recover of plaintiff his costs of suit.”

The plaintiff should have had leave to proceed upon the issue made by the first plea, unless the court, which had just held that the second plea set forth a good defence, intended also to hold, as we suppose it must have held, that the matter of that plea was a good 'defence under the first plea, “as if the same were specially pleaded,” which would itself have been error.

There is no view of this cause which enables us to perceive that the error of the circuit court could not have produced any injury ; and its judgment is therefore reversed, and the cause remanded.