Colquett v. Williams ( 1959 )

PER CURIAM.

The history of this controversy is set out in the opinion of the Chief Justice which appears below. In our opinion, the facts there recited show that Colquett and Wishum are strangers to the proceeding in which the order or judgment sought to be subjected to examination here was made or rendered. Garrison v. Webb, 107 Ala. 499, 18 So. 297, 299. In the case just cited, it was said:

“ * * * We can no more revise or order the vacation of an interlocutory order, in which the parties thereto have acquiesced, by mandanwis, at the instance of a stranger to the suit or proceeding, than we could entertain an appeal by him from the final judgment or decree.”

To entitle Colquett and Wishum to the extraordinary writ of mandamus, they must show that they have a clear right to the performance of the act or duty demanded. Moseley v. Collins, 133 Ala. 326, 32 So. 131. In our opinion, they have shown no such right. We do not understand the case of Taylor v. Jones, 202 Ala. 18, 79 So. 356, to so hold.

The foregoing is sufficient to a decision on this appeal, but .in view of the statement in the dissenting opinion that “the judgment rendered on March 29, 1955, was a valid and binding judgment,” we deem it appropriate to express our views as to that judgment.

We think that judgment is void on its face. The case of Tennessee Coal, Iron & R. Co. v. Hayes, 97 Ala. 201, 12 So. 98, 103, cited by the Chief Justice, says of a prochein ami:

“ * * * He cannot release the cause of action, nor compromise it, nor submit it to an arbitration, the result of which will bind the infant. And being without power to compromise the cause of action, and the court having the power and being charged with the duty of controlling the suit to the protection of the infant’s interest, an attempted compromise cannot have force and validity injected into it by his mere consent to a judgment for the amount he has assumed to agree to receive in settlement of the cause of action. His mere consent is nugatory. It is as if it were not, and had never been. * * ”

See Isaacs v. Boyd, 5 Port. 388.

Here we have a complaint which shows on its face that the minor, by next friend, is suing for one-half the damages claimed to have been sustained and a judgment conforming with the complaint. Both the complaint and the judgment show that they are attempts to compromise or release parts of a cause of action possessed by the minor, because the cause of action is split. If a plaintiff sues only for a part, he is precluded from thereafter maintaining another action for the other portion. 1 C.J.S. Actions § 102f, p. 1311. In Steiglider v. Missouri Pac. Ry. Co., 38 Mo.App. 511, it is said:

“ * * * The plaintiff must bring his whole complaint into court in one suit at one time, — that the cause of action then existing may be entirely considered and forever settled, that there may be an end to litigation. It is not meant by this rule that the plaintiff must join in one action every demand, which, under the rules of law, he might join, but it is only meant that, where he has but one cause of action, he shall have but the one chance to litigate. He cannot sue for a portion now, and a portion at some other time. He cannot, in an action for a wrong committed by the defendant, sue for, and recover, a portion of the damages resulting therefrom, and, then, at some future time, be permitted to complain of the same wrong, and recover other items of damage existing and known to such plaintiff at the institution of the former action. ‘There can be but one recovery for an injury from a single wrong, however numerous the items of damage may be.’ Perry v. Dickerson, 85 N.Y. [345,] 347; Union R. R. & T[ransp.] Co. v. Traube, 59 Mo. [355,] 362. As said by the court in Laine v. Francis, 15 Mo.App. 107, 110: ‘The general rule, therefore, is that, i-f a party, having a cause of action which he may litigate and conclude in one suit, divide it, and sue and recover in respect of a part of it, this judgment concludes him as to the whole, and he cannot, therefore, sue as to the remainder.’ * Jji *

Here, the complaint and the judgment in question clearly show that the minor has lost, from the beginning, the opportunity ever to have his full claim against the defendant Hair adjudicated. This operates to the injury and prejudice of the minor’s rights and the judgment is void because the proceeding shows on its face that it is an attempt to compromise or reduce in half the minor’s claim against Hair.

The judgment being void on its face, the trial court had the inherent right, at any time, to set the judgment aside on motion. Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116 [6]; Robinson Co. v. Beck, 261 Ala. 531, 74 So.2d 915 [2].

Appeal dismissed and petition for mandamus denied.

LAWSON, STAKELY, GOODWYN, MERRILL and COLEMAN, JJ., concur.

SIMPSON, J.,

desires to limit his concurrence to the proposition that the judgment for $8,100 is void on its face.