Eatman v. Goodson ( 1951 )

On Rehearing

CARR, Presiding Judge.

On application for rehearing appellee calls our attention for the first time to the case of Roach v. Privett, 90 Ala. 391, 7 So. 808.

It appears the court in this case declared that the view expressed in Crawford v. Simonton, 7 Port. 110 (cited in our original opinion), “is unsound in principle and cannot be reconciled with later adjudications. The settled doctrine of this court now is, that a set-off may or may not be pleaded, at the election of the defendant; and that, unless it is pleaded, the right to sue upon it as an independent cause of action, or to rely upon it in defense of another action by the same plaintiff, is in nowise affected or impaired by a judgment against the defendant.”

The action in the Roach case was founded on a foreign judgment. This was true also in the Crawford case.

The effect of this holding is that the failure of defendant to plead an existing set-off does not bar defendant’s right of action in an independent suit. This view was expressed in New England Mtg. Security Co. v. Fry, 143 Ala. 637, 42 So. 57, and Slaughter v. Martin, 9 Ala.App. 285, 63 So. 689.

It is to be noted that the Roach case, supra, was cited in each of the above cases. ■

It is generally held that the proper form .of action by which the enforcement of a foreign judgment can be obtained “is debt or the statutory action which has taken the place of debt.” 50 C.J.S., Judgments, § 870, p. 445. See also, Carter v. Crews, 2 Port. 81.

Under the influence of these authorities the proceeding in the Roach case, supra, was based on an action in debt and not an effort to have a dormant judgment revived by scire facias.

We agree with counsel that due to the later decisions we should not have given any weight to the holding in the Crawford case, supra.

This observation, and correction, does not change the conclusion we reached in our original opinion.

The application for rehearing is overruled.