Opinion
4 Div. 913.
October 13, 1921. Rehearing Denied November 17, 1921.
Appeal from Circuit Court, Houston County; H. A. Pearce. Judge.
Reid Doster, of Dothan, for appellant.
Counsel referred to the sections of the Virginia Code as set out in said plea and insists that the money, being in the city of Richmond at the time of the issuance and service of the writ, was within the jurisdiction and control of the court there. 29 Grat. (Va.) 502; 3 Grat. (Va.) 98; 6 Grat. (Va.) 442; 77 Va. 535; 95 Va. 515, 28 S.E. 888, 40 L.R.A. 237; 130 Mass. 184. It is a question of priority, and not superiority of jurisdiction. 2 Wade on Attachments, pp. 220, 335; 198 U.S. 215, 25 Sup. Ct. 625, 49 L.Ed. 1023, 3 Ann. Cas. 1084; 20 U.S. (7 Wheat.) 176, 5 L.Ed. 425. The judgment of that court cannot now be attacked collaterally. 160 U.S. 542, 16 Sup. Ct. 366, 40 L.Ed. 525; 240 U.S. 620, 36 Sup. Ct. 475, 60 L.Ed. 829; 243 U.S. 269, 37 Sup. Ct. 282, 61 L.Ed. 713, L.R.A. 1917F, 1159.
Farmer, Merrill Farmer, of Dothan, for appellee.
The judgment attempted to be set out does not adjudicate any question between the Dothan National Bank and the Central of Georgia Railroad, and is not a valid judgment binding this claimant. 101 Ala. 187, 13 So. 43, 46 Am. St. Rep. 117; 132 Ala. 638, 32 So. 649; 112 Ala. 247, 20 So. 583; 125 Ala. 442, 28 So. 380; 129 Ala. 283, 29 So. 548; 124 Ala. 596, 26 So. 918; 123 Ala. 227, 26 So. 165; 99 Ala. 519, 13 So. 500; 122 Ala. 149, 25 So. 697, 82 Am. St. Rep. 68; 126 Ala. 268, 28 So. 640. The pleas do not show that the Virginia court acquired jurisdiction of the Central of Georgia Railroad, the Boston Oil Mill Company, nor of the Dothan National Bank, nor of the Seaboard Air Line Railway Company. 201 Ala. 454, 78 So. 832; 118 Ala. 477, 23 So. 825, 41 L.R.A. 331, 72 Am. St. Rep. 181; 195 Ala. 150, 70 So. 91; 160 Ala. 217, 49 So. 89, 135 Am. St. Rep. 93; 159 Ala. 418, 49 So. 83. Plea 3 does not show any ratification of the conversion of the funds by the Seaboard Air Line Railway. 170 Ala. 617, 54 So. 168; 147 Ala. 636, 41 So. 809; 163 Ala. 304, 50 So. 284; 146 Ala. 216, 41 So. 12, 8 L.R.A. (N.S.) 448, 119 Am. St. Rep. 19. 118 Va. 628, 88 S.E. 95.
Pretermitting other reasons and conceding, only for the purpose of deciding this case, that the Virginia judgment, set out in the defendant's pleas, was valid and binding upon this plaintiff as to the matters thereby adjudicated; yet the pleas fail to show that the claim or demand in the present suit was involved and adjudicated in the Virginia suit, and the action of the trial court, in sustaining the plaintiff's demurrer to the defendant's special pleas, can be affirmed on this ground alone.
"It is unquestionably the law that a former judgment is a bar or estoppel against a prosecution upon the same claim or demand between the same parties, and concludes them, not only as to what was offered to maintain or defeat the claim or demand, but as to any other admissible matter which might have been offered. But where the second action between the same parties is upon a different claim, the demand in the prior action operates as an estoppel only as to matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. This distinction was drawn and clearly set forth by the rule declared in the case of Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195, and which has been several times approved and quoted by this court. Crowder v. Mining Co., 127 Ala. 254, 29 So. 847; Commissioners' Court v. Tuscaloosa, 180 Ala. 479, 61 So. 431. See, also, authorities there cited." Irby v. Commercial National Bank, 204 Ala. 420, 85 So. 509.
The present action is against this defendant, two counts for a breach of the contract of shipment and one for a conversion of the goods by its connecting carrier, for whose acts and conduct it was responsible, the plaintiff being the indorsee and holder of the bill of lading with draft attached, and therefore the legal owner of the goods, and which could have been legally delivered only to the holder of said bill of lading, and as to which the Richmond Guano Company could have become entitled only upon payment of the draft attached thereto. The delivery of the shipment to the Richmond Guano Company by the final carrier, the Seaboard Company, without the presentation and surrender of the bill of lading, was a breach of the contract of shipment as well as a conversion of the goods and the acceptance, by it, of a cash indemnity could not operate to preclude this plaintiff against its right to maintain the present action in the absence of a waiver of same by ratifying the conduct of the Seaboard Company.
The pleas do not show a ratification by the plaintiff, and it was not therefore compelled, by the unwarranted conduct of the Seaboard Company, to waive its rights under the contract of shipment, by resorting to a foreign jurisdiction to litigate over a fund, which it did not and does not now claim. Of course, if this plaintiff had appeared in the Virginia court and claimed the fund, this would no doubt have operated as a ratification of the conduct of the Seaboard Company as well as a waiver of the breach of the contract and the conversion, and a judgment rendered by the Virginia court, under such circumstances, would conclude the plaintiff against the right to maintain the present action. Just as we held would have been the result had the bank in the Irby Case, supra, introduced its land mortgage In the detinue suit for the purpose of augmenting the mortgage indebtedness against the personal property. But as to this, it had an option, and, not having seen fit to inject the amount due, under the land mortgage, into the detinue suit, the said land mortgage did not become a part of the claim or demand that was adjudicated in said detinue suit. Here this plaintiff had the option of appearing in the Virginia court and propound and litigate its claim to the fund in question, and, had it done so, it would have waived the breach of the contract and the conversion, and the judgment rendered would no doubt conclude against the right to maintain the present suit. But the fact that it did not appear, or did not institute a claim or contest for the fund had it appeared, shows that the claim or demand here sued on was not included in the claim or demand adjudicated by the Virginia judgment.
The fact that the plaintiff had its draft presented for payment, before or after the unauthorized delivery of the shipment, or whether with or without notice of said delivery, did not operate as a ratification of the conduct of the Seaboard Company so as to preclude it from maintaining the present action. The plaintiff had the right to insist upon the payment of its draft, regardless of the conduct of the Seaboard Company, and to maintain a suit for a breach of the contract of shipment, upon the nonpayment of same, for the failure to deliver the shipment upon presentation of the bill of lading. A. C. L. Co. v. Dalberg, 170 Ala. 617, 54 So. 168; Baker v. Hutchinson, 147 Ala. 636, 41 So. 809; Dixie v. Harrison, 163 Ala. 304, 50 So. 284; Pelham v. Chattahoochee Co., 146 Ala. 216, 41 So. 12, 8 L.R.A. (N.S.) 448, 119 Am. St. Rep. 19; Kewanee Co. v. Norfolk Co., 118 Va. 628, 88 S.E. 95.
The circuit court did not err in sustaining the plaintiff's demurrer to defendant's special pleas 2, 3, and 4, and the judgment is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.