DUNCAN, Adm'r. vs. HARGROVE et al., 22 Ala. 150

GTBBONS, J. A motion is made in this case to dismiss the writ of error, on the ground that it does not fall within the provisions of the statute of 1846, providing for writs of error in cases where the party in consequence of the adverse ruling of the court is compelled to take a nonsuit.

The provisions of the act are: “ That in all cases where it may be necessary for a plaintiff, in any proceeding at law, to enter a nonsuit, by reason of the determination of the court before which such proceeding may be pending, upon a matter of law, it shall be lawful for such plaintiff to move the Supreme Court at the ensuing term to set aside such nonsuit; when the Supreme Court shall consider the points of law arising upon said nonsuit, and set aside or confirm the same as the law shall be found.” Sec. 2. “ That if the record should not of itself disclose the point upon which such nonsuit may depend, such point or points of law shall be exhibited by bill of exceptions; and the party may have his writ of error as in other cases in which writs of error are allowed by law.” This motion we understand to be based upon two grounds: First, that the nonsuit was voluntarily and not necessarily taken; Second, that this proceeding by scire facias to revive a judgment rendered prior to the passage of the act, is simply a continuation of the same suit, and therefore not affected by the act.

As to the first objection, we only deem it necessary to remark, that all nonsuits in this State are voluntary, as the court has no power in any case to order one. The statute must be construed to mean those cases in which the plaintiff, by the adverse ruling of the court on pleadings or evidence, has become satisfied that he cannot recover, and therefore takes a nonsuit to avoid a verdict against him.

We do not now decide that the statute embraces every case of a nonsuit taken by the plaintiff, but we are satisfied that it does embrace all cases where the adverse ruling of the court is upon the pleadings in the cause. Neither do we think the second objection well taken. It is true, that a proceeding by scire facias is in some respects a mere continuation of the same cause, yet in others it is a new suit.

The defendant cannot plead matters which relate back anterior to the judgment, and in this aspect it is a continuation of the same cause; but he can plead matters subsequent to the rendition of the judgment sought to be revived, and in this aspect it is a new suit, and is to be governed by the rules applicable to other original suits. The language of the statute is very broad, viz: “ Where it may be necessary for a plaintiff in any proceeding at law, to enter a nonsuit,” &c.

This, we feel constrained to hold, includes proceedings by scire facias, as well as other original suits, and if commenced after the passage of the act, they come within it.

It is further insisted by McGrekee and Yance, two of the defendants, that inasmuch as they pleaded but two pleas, to which there was no demurrer and on which issue was joined, and as they did not join in the various pleas of Godwin, one-of the other defendants, on account of the rulings of the court upon whose pleas the plaintiff took the nonsuit, this operates a discontinuance of the cause as to them, and they accordingly move to dismiss the writ of error so far as they are concerned.

The other defendants, assuming that this position is well taken on the part of McGrehee and Yance, base upon it a further argument for their own benefit, that, as the writ of error has necessarily to be dismissed as to McGehee and Yance, this will be a discontinuance of the cause as to them, and consequently a discontinuance of the whole suit. The vice of this argument exists in the premises assumed We do not comprehend how a voluntary nonsuit as to all the defendants will operate a discontinuance of the suit as to one, more than as to the others.

The facts assumed on which tbe position is taken axe not borne out by tbe record, so far as the defendant Yance is concerned. He pleaded a plea of bankruptcy, which was demurred to by the plaintiff, the demurrer overruled, and that ruling of the court is one of the errors assigned.

It is true, one of the defendants, McGehee, has pleaded only two pleas, on which issues have been joined» and on which no ruling has been had adverse to tbe plaintiff; but it does not follow that the plaintiff cannot bring him here with the other defendants, in order to revise an adverse ruling of the court on the pleas of the other defendants. He cannot split up his cause, and try one portion of it at one time and place, and another portion at another. Givens v. Robinson & Painter, 5 Ala. 676.

If the plaintiff had gone on and tried as to Yance and McGehee, and taken the nonsuit as to Godwin alone, as it is insisted he ought to have done, the objection now taken could then have been urged with much more plausibility than at present. The plaintiff is strictly correct in preserving the integrity of his suit. The first error assigned by the plaintiff is, that the court below refused his motion to strike out the third, fourth and eleventh pleas of the defendant Godwin. The ruling of the court in refusing to strike out these pleas, is not revisable on error.

This has been several times decided in this court, and must now be regarded as the settled practice. Williams v. Hinkle et al., 15 Ala. 713; Turner v. Brown, 9 Ala. 867; Stanly et al. v. Hill, 9 Port. 368; Johnson v. Wren, 3 Stew. 172. The principle as stated, howeiver, is limited to the refusal to strike out. We would not be understood as recognizing any principle as established, that, in a case where the court had exercised its discretion against the party filing the plea, and ordered it to be struck out, such party would not be able to revise such action in this court. He undoubtedly would.

The reason of the rule, as first above stated, is, that when the court below refuses to strike out a bad plea, the party making the motion can always reach the defect in the plea by demurrer, and the court ought never to strike out unless the plea is clearly frivolous or fails to respond to the action. The second and third assignments of error necessarily draw in question the sufficiency of the third, fourth, sixth, seventh, eighth, ninth and eleventh pleas. The eighth and ninth seem to be admitted to be good. These are payment, and satisfaction.

It is to be regretted that, in the filing of special pleas and replications, so loose a practice has grown up so extensively in this State. Oftentimes pleas which are required to be. framed with the greatest exactitude and precision, in order to preserve the issues within the proper limits, are formed with a few expressions or phrases which may mean something or nothing, according to the

interpretation of the pleader. This loose mode of pleading specially, although very convenient to the pleader, often leads to great embarrassment, both to the party who has to reply to them, and also to the courts who have to interpret and pass upon them. In the present case, both the pleas and replications are filed “in short by consentthat is, if we rightly understand the consent of counsel on file, form is waived, but not substance.

In the examination of the several pleas, therefore, we shall consider whether they contain severalty substantive matter enough out of which to frame a good plea to the declaration, T.ti? third plea asserts, that the defendant, Godwin, is discharged, because Hargrove, the principal on the note which was the original cause of action, after the rendition of the judgment in the Circuit Court, without the consent of him, Godwin, sued out a writ of error to the Supreme Court, and gave a writ of error bond, in which bond he, Godwin, did not join or assent to in any manner whatsoever, and at a time when the said Hargrove was worth the money, and when it could have been made out of him by execution, if such writ of error bond had not been given.

This plea is clearly bad. It does not appear by the plea, that the plaintiff was in any way implicated in the acts of Hargrove, or that they were done by his connivance or procurement. Hargrove had the legal right to do what he did. One of several joint defendants can, at any time within the period prescribed by the statute, sue out a writ of error in the name of all, and give a writ of error bond superseding the whole judgment.

It would be a strange doctrine to hold, that because one defendant, who was the party primarily liable to pay the debt, as amongst the debtors themselves, had in the name of all sued out a writ of error, given bond and superseded tbe judgibent, tbe other defendants were thereby discharged from all liability. We have only to say, such is not the law, and the demurrer should have been sustained.

The fourth plea asserts, that the said Godwin was discharged, because a forthcoming bond was executed and forfeited, founded on a levy made under an execution on the affirmed judgment from the Supreme Court; that said execution was levied on property of Hargrove sufficient to satisfy the debt and costs, on which forthcoming bond Godwin was not a party. This plea is also defective in substance. It is entirely too vague and indefinite. It does not state who made the bond, nor when it was returned forfeited, nor where the parties lived who executed it, nor what sheriff returned it forfeited.

All these facts the plaintiff has a right to know in a plea of this kind, before he is called upon to take issue upon it, or to reply to it in any way except by demurrer. Besides, if the plea was perfect in all the above items, it would still in our opinion be bad. In Collier v. Vivian, 9 Ala. 907, where the holder of a note sued out an attachment against the maker, and caused to be levied on and seized negroes sufficient to pay the note, and afterwards discharged them from the levy, this court held, that these facts did not afford a defence to the endorser either at law or in equity.

In a subsequent case, however, The State Bank v. Edwards & Walke, 20 Ala. 516, where an execution had been levied on property of the principal debtor sufficient to satisfy it, and was returned by order of the plaintiff, and the property released, it was held, that the surety was thereby discharged. The doctrine of this case we think entirely correct. It is as far, however, as the current of authorities will allow of its being extended.

In the case last cited it is distinctly held, “ that the mere delay or want of diligence in enforcing the execution, or an agreement to delay based upon no valid consideration, will not affect the creditors’ rights.” This plea, then, in order to make it a defence to the action, should allege something more. It should show that the plaintiff did some act, or omitted to do some act which he was bound to perform, in consequence of which the judgment on the forthcoming bond became fruitless.

The mere allegation of the fact tbat there was such a forfeited bond, we do not think sufficient of itself to put the plaintiff to his replication. All the facts of the plea may be perfectly true, and yet the plaintiff may have been diligent and zealous in pursuing all his remedies on the forfeited bond, and the judgment thereon have become fruitless without any fault of his.

A forfeited forthcoming bond, at best, could only be regarded as a cumulative security in the hands of the creditor, and it may well be questioned whether he would be bound to pursue his remedies upon it, to the exclusion of those which he had against the other defendants. This demurrer should also have been sustained.

The sixth plea states, that Godwin is discharged, because an execution issued on the affirmed judgment from the Supreme Court was levied on sufficient property of Hargrove, the principal, to pay the debt, and that the levy is unaccounted for, and which was in no way interfered with by him, Godwin, who was only surety of said Hargrove. In the case of Campbell, use, &c., v.

Spence, 4 Ala. 543, it is decided, that a levy and seizure of goods by the sheriff sufficient to pay the debt will be a satisfaction of the judgment, so far as it respects the defendant in execution; and further, that when a levy is made on property sufficient to pay the judgment, the levy itself will be a satisfaction of the judgment as to younger judgment creditors. Conceding the correctness of these positions, it by no means follows, that a plea which states simply that a levy was made on property sufficient to pay the judgment discharges the security, who is a co-defendant.

The plea does not allege that the property was seized or went into the possession of the sheriff, or that the plaintiff was guilty of any neglect or omission of duty, Or that he in any manner interfered so as to render the levy fruitless. Thus far it is subject to the same objections as the fourth plea; but the plea states, that the levy is unaccounted for. Concede that it is; does it necessarily follow that the security is discharged because the levy is unaccounted for ? Whose fault is it that it is unaccounted for ? The plea does not inform us.

As we understand the relation of creditor and security, the latter cannot be discharged from his liability by the mere inaction of the former, unless there is involved in that inaction some breach of duty, and then the party relying upon it must allege it so that issue can be taken upon it. State Bank v. Edwards & Walke, supra. If there was a levy merely, and no seizure of the property, it was not the plaintiff’s duty to account for it. This was rather the - duty of the sheriff and of Hargrove, the principal, and his sureties.

Because the plaintiff had the right to call upon the sheriff to account for the levy, and did not do so, it by no means follows that the security is discharged. The plea shows no injury ever to have accrued to the defendant G-odwin by reason of the levy not being accounted for, nor can the court know that he .would be in any better condition if it was accounted for. The plea simply asserts the legal proposition, that because there was a levy on property of Hargrove sufficient to pay the debt, therefore the security is discharged.

To this proposition, as thus broadly announced, we cannot give our assent; nor do we think the additional allegation that the levy is unaccounted for, disconnected from any act done by the .plaintiff or omission of duty on his part, aids it. The demurrer to this plea should also have been sustained. The seventh plea is clearly bad.

It alleges, that sufficient property of Hargrove was sold by the sheriff or'coroner of Bussell county to pay this debt, and that the moneys went into the hands of said sheriff or coroner whilst the process issued on the affirmed judgment from the Supreme Court was of force in his hands, and that such moneys were unaccounted for. The plea does not allege, that the property was levied on and sold under the process on this judgment, but simply that it was levied on and sold whilst the process was in his hands.

If sufficient property to pay the debt had been seized and sold under this process, and said moneys were liable to be applied to this debt, it would undoubtedly be a satisfaction of the judgment as to Hargrove and all the other defendants, although the sheriff may have squandered or wasted the money. — Vide Campbell v. Spence, supra. But the plea does not allege these facts.

The legal conclusion from the allegations of the plea, when carefully considered, .are, that although the process under this judgment rvas in the hands of the officer, the levy and sale were made under some .other process also in his hands, and which had priority to the funds. If tbe plea intended to allege, that the levy and sale were made under and by virtue of tbe process in tbe bands of the officer under this judgment, it should have so stated.

The plea is objectionable also for vagueness, as are the others before considered, with this further objection, that it is alleged, that the officer levying and selling was the coroner or sheriff. The pleader should have stated with precision which it was, by what process, 'and when sold. This demurrer should also have been sustained. The eleventh plea states in substance, that there is not, and never was, any such judgment in the Circuit Court of Russell county as that alleged to have been rendered in the sci. fa. and declaration.

This plea is to be regarded in two aspects: one as a plea of nul tiel record, and the other as a plea denying the jurisdiction of the Supreme Court to render the judgment sought to be revived. As a plea of nul tiel record it is not good, because the Circuit Court judgment is not the one sought to be revived. That judgment was merged in the judgment rendered in the Supreme Court, and the object of the sci. fa. is to revive the latter and not the former.

The statement in the sai. fa. and declaration of the rendition of the Circuit Court judgment must be regarded as inducement merely, and not issuable matter; the gist of the action is the Supreme Court judgment. As a plea denying the jurisdiction of the Supreme Court, it is liable to the objection, that the record of a judgment sought to be revived b}' scire facias imports upon its face absolute validity. It cannot be impeached by pleading any matter going behind the judgment. Miller v. Shackelford, 16 Ala. 95.

The party against whom the judgment was sought to be revived, in the case last cited, appeared, and pleaded to the scire facias that the court rendering the judgment against him had never acquired jurisdiction of his person, either by service of process upon him or by attachment of his goods and chattels, and further, that he was not a resident of the State of Alabama at the time said suit was brought, and had never employed counsel to appear for him in the cause, and had never had any notice of the suit in any manner whatever; but this court held the plea bad, as it would not require the court to go back and search the records, to ascertain whether service had actually been effected upon him or not.

This authority we regard as decisive of the present plea in the aspect in which we are considering it, Whether the same rule would hold in reference to like pleas to foreign records, we do not now decide. The authorities, however, as to them, would seem to be opposed to this view. Pucket v. Pope, 3 Ala. 552, and cases there cited. The demurrer to this plea should also have been sustained. The record shows that the plaintiff filed several replications to all of the pleas filed by Godwin, to which the defendant demurred generally, and the demurrer was sustained. In this there was mo error.

As a general rule, the plaintiff can file but one replication to a plea. An exception to this rule was made by the statute of 1846, which provides, that to the pleas of set-off, infancy, or the statute of limitations, the plaintiff may reply as many matters as he thinks proper, (Acts of 1846, page 36;) but this exception to the general rule cannot be extended beyond the provision of the statute.

When several replications are filed, it is at the option of the defendant to demur generally, and get rid of the whole of them in that way, or he may call upon the plaintiff to elect which one he will retain, and move the court to strike out the balance. Vance v. Wells & Co., 8 Ala. 399; Williams v. Hinkle et al., 15 Ala, 713. The only remaining error assigned, which we deem it important to notice, is, the overruling the demurrers to the pleas of bankruptcy filed by Hargrove and Vance.

These pleas seem to have been filed “in short by consent;” and inasmuch as such pleas could be well pleaded, if the facts warranted it, we feel bound to presume that these were so. There was no error therefore in overruling these demurrers. For the errors aboved noted, the judgment of nonsuit in the court below is reversed, and the cause remanded for further proceedings.