Wilkes v. Coopwood , 39 Miss. 348 ( 1860 )

Handy, J.,

delivered the opinion of the court:

This action was instituted on the 17th of November, 1856, to recover certain sums of money alleged to be due the plaintiff’s testator, Mark Prewitt, by the defendant, for money paid and expended, and for work and labor. The declaration avers that on the 12th April, 1847, an action was instituted by the plaintiff’s testator, in his lifetime, against the defendant; that on the 28th March, 1855, a judgment was rendered in favor of the plaintiff’s testator, in that suit, for two thousand two hundred and ninety dollars, from which the defendant took an appeal to this court, where the judgment was reversed on the 18th February, 1856; and that the present action was instituted on the same eause of action, within a year after said reversal, by virtue of the statute authorizing the reinstitution of suit in such cases. The defendant pleaded to this, amongst other pleas, that at the March term, 1853, of the Circuit Court of Monroe county, a judgment was rendered in favor of the defendant against the plaintiff’s testator for costs in an action brought by him against the defendant for the same causes of action on which this action is founded, which judgment was still in full force and unreversed ; and further, that at the same term of the said Circuit Court, and in an action brought by said testator against the defendant for the same causes of action on which this action is founded, a verdict was rendered for the defendant,' and on the 20th March, 1856, a judgment was rendered in this court in favor of the defendant on that verdict, and that the same remains in full force and unreversed. To these pleas the plaintiff replied, that the verdict and judgment in the pleas mentioned were a portion of the proceedings in the previous suit between the plaintiff’s testator and the defendant referred to in the plaintiff’s declaration in this case. The defendant demurred to these replications, the demurrer was sustained, and judgment rendered for the defendant, upon the plaintiff declining to plead over.

The question now is, whether the court erred in sustaining the demurrer.

The facts in relation to the two judgments mentioned in these pleadings do not appear to be set forth with clearness or certainty.

It appears, by the pleas, that a verdict and judgment were rendered for the defendant in a suit upon the same causes of action embraced in this action, and that judgment was rendered thereon in this court, which remains in full force. This would certainly be a bar to a subsequent action founded upon the same causes of action. But the plaintiff replies that this judgr ment was a part of the same proceedings referred to in the declaration, by which the judgment in his favor was reversed in this court; and this is admitted by the demurrer. It thus appears that two judgments were rendered in the same cause in this 'court, one reversing the judgment of the Circuit Court rendered in March, 1855, in favor of the plaintiff's testator, and one rendering judgment in favor of the defendant and against the plaintiff’s testator npon a verdict rendered in the Circuit Court in the same cause at March term, 1853. How this w^s-done does not clearly appear by the pleadings. But it is clear that the only fact stated in the replications — to wit, that the judgment rendered in this court for-the defendant was a part of the same case in which the judgment in favor of the plaintiff’s testator was reversed — is not a sufficient answer to the bar created by the judgment for the defendant. ' That it was a part of the same proceeding and rendered in the same action, does not the less render it a bar to the same demands in a subsequent action.

It is insisted in behalf of the plaintiff in error that the statute (Rev. Code, 401, Art. 19) authorises the institution of a new action after the reversal of the plaintiff’s judgment and within one year thereafter. But the pleadings here not only show that the - plaintiff’s judgment was reversed, hut that a judgment or verdict was rendered for the defendant in the previous- suit. Such a case is clearly not within the statute; for the judgment for the defendant must be presumed to have been rendered on the merits of the demand, as it was upon verdict; and such a judgment, remaining in full force, is in law a final and conclusive bar to .another action on the same account; and this right to the defendant was not intended to be disturbed by the provisions of this statute.

Judgment affirmed.