Sharp v. Edwards ( 1919 )

Counsel for appellants earnestly insists that on the original hearing we misconceived the purpose of the bill. In his brief on rehearing he says:

"The error that the court has made in this case, in its opinion rendered in this cause, it would seem, is in treating the injunction issued in the premises as a process directed to the circuit court in relation to the Edwards' judgment. Nothing of the kind in fact was done, nor was anything of the kind in fact sought. Edwards, and Edwards alone, was enjoined by the writ and it operated merely upon him."

The original bill not only specifically prayed that the clerk of the circuit court be enjoined from collecting the judgment, but the court ordered and directed that the injunction issue as prayed. It did so issue, as prayed, and was served on no one but the clerk of the court. It was never served on the respondent or his agent or attorney.

In the amended bill the prayer is as follows:

"Orators further pray that said judgment of the said W. C. Edwards as mentioned in their original bill having been affirmed by the Court of Appeals of the state of Alabama, that your honor will now sustain the writs of injunction heretofore issued in said cause for the purposes for which they were issued, as originally prayed."

If this did not seek to obtain injunctive relief against the clerk of the circuit court from enforcing a judgment in that court, it is difficult to understand what would.

While the injunction did issue against Edwards, or his agents and attorneys, it also issued against "Lamar Jeffers, as clerk of the circuit court of Calhoun county," and he was the only person upon whom the writ was ever served. There was only one writ of injunction issued, and that was served on the clerk of the circuit court on February 12, 1917, and thereafter, on August 24th, continued by another order, and was dissolved only by the final decree of the court on January 15, 1918.

The record and proof conclusively show that, when the bill was filed and the injunction issued, there was no enforceable judgment in the circuit court. The enforcement of that judgment had been superseded by the circuit court, and the whole proceeding removed to the Court of Appeals, by action of complainants, the defendants in the circuit court, who had executed a bond, the conditions of which were to pay such judgment and costs as should be rendered in the Court of Appeals. A judgment was rendered in the Court of Appeals against appellants and the sureties on their supersedeas bond. This judgment was a judgment of the Court of Appeals, and not of the circuit court. The clerk of the circuit court could not enforce it by issuing an execution thereon. The judgment in the circuit court had been by complainants' voluntary action merged into a judgment in the Court of Appeals. The clerk of the appellate court was the officer who was charged with the duty of issuing execution on it. It was not only a judgment against complainants, but also against their sureties. It took the place of the judgment in the circuit court, and there was no reason for enjoining the enforcement of the judgment in the circuit court — it was dead and extinguished by the judgment in the Court of Appeals. If any judgment had to be, or ought to be, enjoined, it was the judgment in the Court of Appeals. The effect of an injunction against a judgment or legal proceeding to enforce it can only serve to supersede or stay the proceeding. The circuit court had already superseded and stayed the proceedings, when the bill was filed and injunction issued. The injunction was therefore useless from the day it was issued until it was dissolved.

Appellants seriously argue on this application for rehearing that the injunction ran against the defendant Edwards only, and not against the judgment. In this we have shown that counsel is in error. The prayer and the writ ran against both Edwards and the clerk of the circuit court, as such clerk; but it was served only upon the clerk and never upon Edwards. There is neither allegation nor proof that either Edwards or the clerk ever attempted to enforce this judgment in the circuit court, which was "functus officio." If there had been allegation or proof that Edwards and the clerk were attempting to execute this dead judgment, the complainants might have had some standing in equity to have them enjoined; but no such case was presented.

They pleaded payment specially in that action, and hence the bill and proof showed that the judgment was res judicata as to the checks. The only possible relief as to the lost or missing checks was to set aside the judgment, and reopen the case on the ground of fraud, surprise, or newly discovered evidence. The greater part of appellants' brief on original hearing was devoted to this feature of the case. Most of the cases cited and relied upon by appellants were cases in which judgments were set aside or sought to be set aside on account of fraud, surprise, or newly discovered evidence, such as De Soto Co. v. Hill, 194 Ala. 537, 69 So. 948, which reviewed all prior cases on the subject. The case of Evans v. Wilhite et al.,167 Ala. 587, 52 So. 845, reviewed the cases and compared the equitable remedy with that afforded by the four months' statute against judgments obtained by fraud, surprise, or on account of newly discovered evidence.

It is very true that equity has jurisdiction to establish and enforce an equitable set-off against a judgment where the plaintiff in judgment is insolvent, or the set-off or recoupment for some reason is not enforceable in a court of law; but, so far as the lost or missing checks were concerned, as to which almost all the contest has been in this case, there was neither set-off nor recoupment. They were merely evidences of payment of the demand sued on; there was no attempt to recover back money paid on them.

So far as the balance due Edwards for building the house for complainants and his lien on the house and lot in payment thereof is concerned, the judgment is res judicata as to the balance due, and as to the existence and extent of the lien. The suit in the circuit court was brought for no other purpose. The statute directs how it shall proceed, etc. The plaintiff in such suit can only recover the balance due, and if there is nothing due — the whole having been paid to plaintiff — the plaintiff, of course, fails. The statute also provides how the owner may protect himself against the claims of laborers and materialmen by demanding lists from the contractor as to such parties and their demands. The statute also provides for making all such persons — laborers or materialmen — parties, and provides that the owner shall be liable to them only as for any unpaid balance due the contractor. All these matters can be adjudicated and determined in a court of law as well as equity.

So far as the lost checks are concerned, and so far as complainants may be liable under the statute to materialmen as for unpaid balances, that could all have been settled just as well in the circuit court as in the chancery court. Except as to the allegations of suretyship, all questions between complainants and Edwards as to balance due him, the amount paid him, and the extent of his lien, were adjudicated in the circuit court, and are therefore res judicata. The materialmen could not obtain or enforce a lien against the owner without notifying him of their claim before he pays the contractor. If Edwards deceived complainants as to these matters, and thus prevented them from making the defense in the law court, that might be ground for setting aside the judgment so obtained by fraud; but until such judgment is set aside it is conclusive against complainants and Edwards as to all questions litigated therein, which include all matters here complained of except the allegations as to complainants being sureties for Edwards to the other several respondents.

As to the questions of complainants being sureties for Edwards to other respondents, we never treated that question as to the equity of the bill for that purpose; that is, a bill by a surety to compel his principal to pay the debt secured, and for which the surety is liable, for the reason that question was not insisted upon in the original hearing by counsel on either side. There was only the slightest reference to the subject of suretyship, as we supposed, for the reason that the allegations of the bill as to suretyship each and all not only utterly failed for proof, but were affirmatively disproved by all the proof offered by the complainants. Of course, no relief could be granted on a theory which the complainants themselves disproved.

It is true, as insisted by counsel on rehearing, that this proof is not binding on the materialmen; but it is binding on the complainants who made the allegations and proof as to suretyship, and who are the only parties complaining against the decree of the lower court.