Sullivan v. Tigert , 1 Tenn. App. 262 ( 1925 )

OPINION ON PETITION TO RE-HEAR. On a previous day of this term, November 7, 1925, an opinion was rendered by this court in this case. The plaintiff in error, Sam C. Tigert, upon application was granted five days additional time in which to file a petition to re-hear, and on November 21, 1925, he filed a petition for a rehearing of the case on two grounds; (1) he insists that under the plea of former adjudication the action should have been dismissed in our court and not remanded for a new trial, and (2) he insists that the court erred in not adjudicating the cost of the cause against the surety on the prosecution bond, or at least that the cost of the appeal should have also been adjudged against the surety on said prosecution bond.

After an examination of the authorities, we are satisfied that our former opinion was correct.

On the first proposition he insists that under his plea of former adjudication, the only replication that could have been filed was nul tiel record, and that upon his production and proof of the record in the cause formerly tried in the chancery court, then it was the duty of the trial judge to have passed upon that proposition and to have immediately dismissed the action.

In reply to this contention, we will say that when a party files a plea of former adjudication the plaintiff has a right to file a replication of nul tiel record or he may reply that the former judgment or decree is not the same cause of action. In event that he files a replication of nul tiel record which makes no averment of extrinsic facts, that issue must be tried by the court. Nothing but an inspection of all the original record, if in the same court, or certified copy, if in a different court, is necessary to decide it. But if the plaintiff's replication is that it is not the same cause of action then that issue should be tried by the jury, because the plaintiff must necessarily depend upon extrinsic proof to show that it is not the same cause of action. See Caruthers' History of the Law Suit (5 Ed.), 230; Coulter v. Davis, 13 Lea, 451; Smithson's Civil Procedure, pp. 535 to 551.

Now in the instant case, the suit having originated before a justice of the peace, the plea of former adjudication and the replication thereto need not be in writing, and the only way that we can tell what replication the plaintiff tendered is by an examination of the whole record, and we must assume that the proper replication was tendered. In the chancery proceedings other issues were principally involved, and the credit of $12 allowed on the note was merely an incident. It took extrinsic oral testimony to explain the former decree and also to establish the necessary proof in this case, therefore, we may well assume that the replication was that they were not the same cause of action.

"When a former judgment is set up as a bar or estoppel, the question whether there is such an identity of the parties and of the subject-matter or cause of action as will support the plea of res adjudicata is a question of law for the court when it is determinable from an inspection of the record alone, but if extrinsic evidence is required to effect the necessary identification, it becomes a question of fact and must go to the jury, unless the proof admits of only one conclusion. In either case, when this point is established, or if it is not disputed, it is for the court to decide and declare the effect which shall be given to the former judgment as evidence in the pending action or as a bar to its maintenance." See 34 C.J. 1079-1080.

However, whether we assume that plaintiff's replication was nul tiel record or that it was the same cause of action, the result will be the same. The case was tried by a jury, and if the plaintiff's replication had been nul tiel record, and if the trial judge had upon inspection of the record decided that this action was about the same subject-matter of the former suit, that the former suit was for the same object and purpose, that the same issues were joined, and that the former adjudication was upon the very point directly in issue by the pleadings in this case, then the result would have been the same. It would have been the duty of the court to have passed upon the replication of nul tiel record, and to have instructed the jury to this effect and to have directed a verdict in this action. He had the jury and it was his duty to instruct them to return a verdict for the defendant, and if he did not do so, then it was the duty of the defendant to have moved the court for a directed verdict. This was not done and we see no reason to change our former opinion on this proposition.

"Although it may be left to the jury to find whether a former judgment set up as an estoppel was between the same parties and involved a determination of the same point or question presently in issue, when extrinsic evidence on this question has been heard, the court should at the same time instruct them as to the effect to be given to the former judgment if they find to be in point." See 34 C.J., 1080, sec. 1524.

The other question raised by the petition for a rehearing is that the court erred in not taxing the cost of the appeal against R.W. Gaunt, surety on the prosecution bond. After a re-examination of the authorities we are satisfied that our former opinion is correct.

It has been established in many cases decided by our Supreme Court and by this court, that the surety on the prosecution bond is not liable for the costs of the appeal in a law case, although the rule is otherwise in the chancery court. On appeal chancery causes are tried de novo in the appellate court, whereas law cases are tried on writ of error, and the surety for the prosecution of a suit at law, upon a bond given under chapter 19, section 1 of the Act of 1787, (Shannon's Code, Sect. 4923) is not liable for the costs beyond the judgment of the court in which the suit is instituted. See cases collated in Michie's Tenn. Ency., Dig., Vol. 3, pp. 826-827.

It results that the petition to rehear must be denied.

Faw, P.J., and DeWitt, J., concur.