Davis v. Bedsole , 69 Ala. 362 ( 1881 )

SOMERVILLE, J.

We think the plea of former recovery in this case was good, and the demurrer to it should have been overruled. The whole matter of controversy was res adyudieata, having been previously determined by the judgment of a justice’s court in the county of Montgomery. The two suits were between the same parties, in the same right or capacity, and the subject-matter of controversy (the rent of certain lands owned by the plaintiff and which were leased' by the defendant), was the same in each suit. The justice court was a tribunal of competent jurisdiction, and the attachment suit instituted before it, for the identical cause of action here brought, terminated in a regular judgment on the merits. This involved the concurrence of every element of fact necessary to constitute a case of res aclyudicata.- — Freeman on Judgments, §§ 252, 256, 263; Hamner v. Pounds, 57 Ala. 348; S. & N. R. R. v. Henlein, 56 Ala. 368.

It can not be successfully urged that the justice’s court was without jurisdiction. The allegation of the plea is that the defendant made .an appearance and the justice rendered judgment against him for the. sum of one hundred dollars, besides costs. Our decisions have been uniform in holding, that, in an action of this nature on a contract, and in actions on accounts, the plaintiff may before, or at the time of the rendition of judgment remit the excess of his demand over and above the sum for which the justice is authorized to render judgment, so .as to bring the case within his jurisdiction. — -2 Brick. Dig. p. 175, § 17, and cases cited. This principle has no application, Eowever, to actions for the recovery of specific property.- — Carter v. Alford, 64 Ala 236. The obtaining of the judgment before the justice of the peace in Montgomery county for the sum of one hundred dollars was' a voluntary remitlií/u,r by the plaintiff of the balance of his demand beyond this amount.— Whorton v. King, at present term — (se post, p. 365.)

We can not see that the case is varied by the fact that the attachment before the justice was sued out after the commencement of this action, and could have been abated for this reason at the option of the defendant. It is a sufficient answer to this view, that the defendant did not elect to interpose such a plea, so far as the record shows, and the plaintiff did elect to prosecute his suit to judgment in a forum of his own choosing. It is a sound public policy, having in view the tranquility of society, which forbids a plaintiff to twice vex a defendant for the same cause of action. Nemo débet bis vescari, si constat quod sit pro unco et eadem causa.

The Circuit Court erred in sustaining the demurrer, and for this reason its judgment is reversed, and the cause is remanded.